Cases and authorities

CHEQUES- bearer cheques crossed "not negotiable" - drawing procured by fraud - no concluded contracts - drawer remains true owner entitled to immediate possession - third party deposits permitted by bank - conversion - deposit not authorised by senior executive contrary to standard procedure - bank fails to establish it acted without negligence - statutory defence fails - bank allows drawings on customer account before notice of fraud - change of position and acting to detriment relevant to voidable transactions but not to void transactions - formal submission that contributory negligence a defence to conversion.

CORPORATIONS - winding up - application to have statutory demand set aside - low threshhold applicable in such cases discussed - demand set aside

CRIMINAL LAW - appeal against conviction - common assault - whether common assault is an indictable offence - whether District Court has jurisdiction to deal with charge of common assault - statutory construction and interpretation - appeal against severity of sentence - parity of sentence with co-offender - whether sentence was manifestly excessive - D

Criminal law - conviction appeal - absence of appropriate directions in case involving multiple counts for sexual offences allegedly committed some twenty years beforehand - application of Jones v The Queen (1997) 191 CLR 439

LIMITATION PERIOD - Limitation Act 1969 - ss60A, 60C and 60E - personal injury claims - three year primary limitation period - five year secondary limitation period

Caveat form completed and signed by registered proprietor at time of signing Loan Agreement. Whether Loan Agreement and caveat read together are sufficient to satisfy statutory requirements to grant equitable charge.

NEGLIGENCE - foreseeability - knowledge

TORTS - physical assaults - deep vein thrombosis - causation - damages - appeal dismissed

Negligence - Medical Negligence - Non Delegable Duty of Care - Limitation Period - Extension of Time - Principle in Briggs v James Hardie Co Pty Ltd (1989) 16 NSWLR 549

CORPORATIONS - winding up - application to set aside statutory demand - genuine dispute

CORPORATIONS - winding up - summons for examination - liquidator's continuing interest in defendant's financial means - whether fear of media misreporting warrants order that examination be in private

LANDLORD AND TENANT - COVENANTS - quiet enjoyment - relationship to derogation from grant - CONTRACTS - rectification - action for breach of contract decided by reference to contract as rectified - EQUITY - rectification - once granted, relates back - LANDLORD AND TENANT - termination of tenancy - waiver of right to terminate by acceptance of rent - can apply when rights to terminate arises from non-payment of rent - LANDLORD AND TENANT - subject matter of lease - implied right to such facilities as are needed or required for reasonable enjoyment of property granted - DAMAGES - measure and remoteness of damages in actions for breach of contract - damages recoverable under second limb of Hadley v Baxendale only for damage arising from special circumstances known, at date of formation of contract, as likely to cause damage - DAMAGES - exemplary damages - not recoverable for breach of contract - JUDGMENTS AND ORDERS - when construed by reference to extrinsic material

SUCCESSION - WILLS PROBATE AND ADMINISTRATION - construction and effect of testamentary dispositions - construction of gift to unincorporated association, to be used in promotion of a school and associated activities, when that association never ran that school - CHARITIES - charitable gifts and trusts operation of section 10 Charitable Trusts Act 1993 to find general charitable intention - appropriate type of cy près scheme

CRIMINAL LAW - possession of prohibited imports - Customs Act 1901, s 233B - appeal against conviction - leave to appeal against sentence - whether trial miscarried - directions to jury - onus and standard of proof - evidence of good character - direction on character - cross-examination of accused without leave - offensive cross-examination of accused - D

Criminal Law - Drug Misuse and Trafficking Act - s 25A - Sentence - whether manifestly excessive

NOTICE OF MOTION - whether court should amend costs order - ND

Application for leave to appeal against sentence to be served by way of periodic detention - Parole Board revoked sentence - whether Court of Criminal Appeal has jurisdiction to hear appeal from original sentence - question considered but not necessary to decide - even if Court had jurisdiction to hear appeal no error by sentencing judge demonstrated.

PRACTICE AND PROCEDURE - application for vacation of hearing dates - plaintiff knowingly provides deficient information in response to Court order - defendant prepares case relying on that information - plaintiff admits to inaccuracy just before hearing COSTS - indemnity costs - grounds

Practice and procedure - Pleading - Requirements for proper pleading - Summary dismissal or stay - Principles - Striking out - Difference in tests for summary dismissal and striking out - Conspiracy - Necessity to plead with particularity - Negligence - Interference with decision by the Master

Accused wishes to raise alibi - no notice of particulars of alibi provided within the prescribed period - whether leave of the Court is required before the evidence can be adduced - whether the expression "adduce evidence in support of alibi" extends to a situation in which the accused alone gives evidence of alibi - held leave was required - leave granted.

Personal injury - negligence - damages

Appeal from Master - Limitation Act Ss60G and 60I - discretion to extend time - finding by Master plaintiff lacked veracity - finding based on inconsistencies between document and evidence - finding not justified - finding by Master absence of employment records affect defendant's capacity to investigate economic loss - argued by defendant absence of records affect its capacity to investigate claims for general damages - not considered before Master - no prejudice to defendant - fair trial awarded to defendant - time extended - appeal upheld

CONTRACT - misappropriation by service provider - right to recover money misappropriated - no question of principle

Family Provision. Application by a de facto widow. Consideration of principles applicable. Designation of property as notional estate and consideration of where the burden of any increased provision should fall. Order for increased legacy in favour of the plaintiff.

Criminal law - Passing valueless cheques - Decision by magistrate that offence indictable - Interlocutory order - Procedure - Leave to appeal

CORPORATIONS - winding up - statutory demand - whether specification of creditor's address as post office box is a defect - whether demand in prescribed form but referring to "Corporations Law" instead of "Corporations Act 2001" is a "statutory demand" - whether misdescription of legislation is a defect

Criminal law - aggravated sexual assault - Crimes Act 1900 s 61J - aggravation consisting in commission of offences in company - meaning of "in company" - whether trial judge erred in interpretation of phrase - whether misdirection of jury resulted

Criminal Practice & Procedure - Appeal against severity of sentence - Armed robberies - Breach of parole - Parole in respect of offences of a similar kind - Whether sentence within discretion

Contracts - whether Building & Construction Industry Security of Payment Act 1999 applied to contract entered into after commencement of the Act - whether payment claim satisfied requirement of the Act - Corporations - whether employed solicitor may sign a statutory demand on behalf of client

Sentencing - No question of principle - sentences not excessive

EQUITY [87] - General principles - Penalty - Relief against penalties and forfeiture - Relief against forfeiture of contract for sale of land - Evidence of unconscionability necessary.

risks and possible consequences of medical procedures - adequate information - duty to warn of reasonably foreseeable consequences - breach of duty - competing advantages and disadvantages - alternative forms of surgery - causation

EASEMENTS - right of carriageway - strip of land owned by Council had been in use (a) by public as a footway and (b) by neighbour under right of carriageway - application under s88K Conveyancing Act 1919 for grant of right of carriageway over strip longer than neighbour's existing right of carriageway, contingent on compliance with conditions imposed by Council in relation to subdivision of plaintiffs' property - under s88K consideration given to reasonable necessity for right to carriageway, public interest and compensation to the owner - application granted - decision on facts.

Extension of time to appeal decision of costs assessor - leave to appeal

CORPORATIONS - Directors - exercise of powers in good faith - alleged breach of Directors' duties - Plaintiff was company with charitable objects - directors distributed property to incorporated successors of branches - powers in memorandum included power to do so - after change in control, plaintiff sought to recover property on basis of knowledge of recipients that exercises of directors' powers were not in good faith for purposes of the company - alleged divergence between course taken by directors and course approved by members at Extraordinary General Meeting - on the facts, the directors did not abuse their powers - distribution of money to Windgap was challenged as in breach of clause in memorandum prohibiting distribution of profits - on examination of the mechanism adopted, found that there was no distribution of property of the plaintiff.

MORTGAGES [60] - Mortgages and charges generally - Remedies of the mortgagor - Injunctions to restrain sale - Payments into court by mortgagor of mortgage debt - Whether condition precedent in all cases.

Appeal from Master - Ss 60G and 60I Limitation Act - plaintiff ought to have been aware personal injury had been suffered - plaintiff ought to have been aware of nature of personal injury suffered - plaintiff ought not to have been aware of connection between personal injury and defendant's act or omission - no prejudice to defendant - appeal dismissed.

Local Court - Small Claims Division - Standard or usual procedure - No application to vary - Procedural fairness - Written statements - Right to oral hearing - Right to cross-examine - Whether absence of either constitutes denial of natural justice - Amendment of grounds of appeal - Ambit of appeal from Local Court in civil cases - No repeal of section 69 of Local Courts (Civil Claims) Act 1970 by Pt 5 of Justices Legislation Amendment (Appeals) Act 1998 - Costs - Discretion

ARBITRATION LAW - meaning of "notice of award" - whether "notice of award" includes arbitrator's reasons for the award - Pt 72A r 5(1)(b) Supreme Court Rules - when time commences to run for the purposes of bringing an appeal. D

Sentencing - severity appeal - insufficient allowance made for subjective circumstances associated with applicant's aboriginality.

Criminal law - appeal - drug trafficking - single offence committed in conjunction with co-offender who had committed a number of offences - necessity for custodial sentence.

Criminal law - appeal - sentence - parity - commencement date - pre-trial custody - sentence should have been backdated.

NOTICE OF MOTION - whether court gave adequate consideration of the question of causation - ND

CIVIL AVIATION REGULATION - Reg 157 - landing - unlawful flying - low flying

Sentencing - severity appeal - no question of principle involved.

CORPORATIONS - winding up - liquidator resists proceedings to admit proof of debt and brings proceedings for breach of duty - after commencement of hearing, liquidator does not tender evidence - whether liquidator should be ordered to pay other party's costs without resort to the company's assets

Cross-vesting - District Court action, set-off and cross-claim - Test on cross-vesting application - Onus of proof on cross-vesting application - Considerations for exercise of power

REAL PROPERTY - conveyancing - Old System Title - adverse possession - whether possession by the plaintiff was adverse to the Municipal Council documentary title owner - land in possession of plaintiff's father with consent of previous owner - on sale to Council father's occupation recognized and Council resolved to treat him as tenant on nominal rent - no evidence father told or any lease granted - on death of her father plaintiff remained in possession - various entries of Council's agents for survey and perhaps inspection - whether amounted to resumption of possession - correspondence between possessor's solicitor and Council including offer to purchase and proposals for joint sale - whether acknowledgement of title of Council or proposals made to compromise dispute - LIMITATION ACT 1969 s54 - whether statements in correspondence acknowledgement of title or in negotiations for compromise of disputed claim - whether acknowledgement could be signed by agent