Cases and authorities

Whether valuation of hotel supplied by the respondent was false, misleading and negligently prepared - action dismissed by the Full Court of the Federal Court - whether the principles in Haines v Australian Broadcasting Corporation were correctly applied - whether claim barred by the Statute of Limitations - defence of res judicata - appeal dismissed with costs.

Criminal Practice & Procedure - Application for extension of time - Appeal against severity of sentence - Periodic detention - Revocation of order - Sentence excessive

Criminal Practice & Procedure - Appeal against severity of sentence - Sexual offences - Whether sentence excessive - Structure of sentence as required by R v Pearce

CONSTITUTIONAL LAW - The Crown - Crown immunity - State instrumentality - Liability for tort - Whether liable for own conduct - Whether vicariously liable for conduct of employees - Whether it can be sued in the courts. D.

CORPORATIONS - statutory demand - genuine dispute and offsetting claim - proprietor claims variation credits and compensation for delay - genuine dispute or offsetting claim established - BUILDING & CONSTRUCTION - statutory entitlement to make payment claim for progress payment - invoice for final account held not to be claim for progress payment - requirements for valid payment claim under Building and Construction Industry Securities of Payment Act 1999 (NSW)

Criminal law - sentence - infanticide - plea of guilty - prior history of severe mental illness - post-natal depression and psychosis - limited culpability - extensive post-offence psychiatric treatment - further supervising by Department of Community Services - protection of community.

PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Success of different parties on distinct claims.

Criminal law - sentence - appeal - supply drugs - CCA differently constituted found error in sentence for co-offender - error also affects this sentence - culpability wrongly considered to be aggravated by evidence of future intentions - appeal allowed.

Criminal law - sentence - appeal - kidnapping - diverse circumstancs of offence - little assistance from statistics or other cases - no error - sentence not excessive.

Sentencing appeals - sentencing judge did not quantify discount for plea of guilty - further, did not specifically backdate sentence for pre-sentence custody - desirability of quantifying discount for plea and backdating for pre-sentence custody emphasised - R v Howard [2001] NSWCCA 309 applied

APPEAL - COSTS - DISTRICT COURT - Offer of compromise - Amount of costs specified in offer - Whether offer purported to negative or limit plaintiff's right to costs - Verdict reduced on appeal to amount lower than offer - Appropriate order for costs. D.

CORPORATIONS - reinstatement of registration - company deregistered under Companies Code - jurisdiction under Corporations Act to order reinstatement - reinstatement just if coupled with winding up - jurisdiction to order winding up

Landlord and tenant - commercial lease - appeal from decision of Local Court by way of stated case - whether respondent entitled to exclusive possession of the whole of the premises - whether sufficient evidence to support Magistrate's finding that lease agreement repudiated by conduct of appellant

Corporations Law. Application to set aside statutory demand. Demand varied. No matter of principle.

PROCEDURE - Late application to claim contribution or indemnity - Power and discretion of Court after liability determined when only relief to be argued.

PRACTICE AND PROCEDURE - pleading - limitation of action - whether pleading in negligence and breach of duty asserts multiple breaches, some within and some outside limitation period, or a single breach outside the limitation period

[WILLS] - construction - printed form - made without legal advice - whether in the context of the will "personal estate" includes real property - whether second defendant entitled to participate in proceeds of sale of real property.

Corporations - Statutory demand - Application by company to set aside demand - Challenge to retainer of solicitors - Notice of directors' meeting not given to one of two directors - Quorum not present at meeting - Validity of purported appointment of additional director - Whether meeting can be treated as a general meeting of company - Whether one of two directors has authority to commit or bind company - Possibility of subsequent ratification of appointment of director and retainer of solicitors - Whether proceedings should be stayed pending possible ratification or should be dismissed.

Criminal Law - Hinder discovery of evdience concerning a serious inditable offence - tamper and assist with disposal of vehicle - whether specific or general knowledge of offence required - statutory interpretaton.

Criminal law - plea of guilty - appeal - principles applicable - claimed misunderstanding of charge - claim rejected.

Tort - negligence - Motor Accidents Act 1988 - liability admitted - appeal as to quantum of damages - miscalculation of damages by trial judge - Courts - inferior courts - District Court - appeal - inadequate reasons of trial judge - unfamiliarity with relevant law - injustice resulting - grounds for retrial - ND

Costs - no question of principle

Criminal law - contempt of court - refusal to take oath and give evidence - sentence.

CORPORATIONS - application by the company for winding up on just and equitable ground - whether board of directors has power to resolve to make application for winding up and for appointment of provisional liquidator - whether receiver and manager would be more appropriate - relevance of attitude of board of directors

Corporations - deed of company arrangement - construction - valid resolution of meeting of creditors to enforce administration deed - no estoppel against administrator - no representations - reliance upon legal advice and not representations - not unconscionable - lack of clean hands - no breach of Fair Trading Act 1987

Imputations - capacity - difference in substance

Imputations - form - capacity - general - specific

Criminal law - contempt - sentence - special considerations applying to plea of guilty for contempt - appropriateness of imprisonment - deterrent - upholding process of justice.

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - illegal and void contracts - contract affecting the administration of justice - whether former employee's express obligation of confidentiality void to the extent it prohibits making confidential information available, out of court, for the purpose of use in litigation - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - llegal and void contracts - methodology for finding public policy - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - illegal and void contracts - when express obligation of confidentiality is unenforceable by reason of nature of the confidential information - INJUNCTIONS - availability against recipient of confidential information when discloser of confidential information is in breach of contract

Contract - Implied term - A 'best efforts' clause is ordinarily inserted in a contract between parties at arms length to give protection to a licensor by imposing an obligation on a licensee to promote the sale of the licensor's products - An obligation to use "best endeavours" does not require the person who undertakes the obligation to do more than he reasonably can in the circumstances to achieve the contractual object - An undertaking to use 'best endeavours' or 'best efforts' to promote the sale of one product does not necessarily impose an obligation not to sell a competing product, although it may do so in some circumstances - A party subject to a 'best endeavours' or 'best efforts' obligation to promote the sale of one product will have breached that obligation "if he prepared a product of his own and promoted the sale of that product with the deliberate intention of appropriating for himself the market which he had in effect promised to do all he reasonably could, to secure for the person to whom he had given the undertaking" - A 'best endeavours' or 'best efforts' obligation in a contract includes an obligation not to hinder or prevent the fulfilment of the purpose of the contract - There is no material distinction of substance between the implied terms of reasonableness and good faith and a close association of ideas between the terms unreasonableness, lack of good faith and unconscionability - Misleading and deceptive conduct - Whether representation made that the plaintiff's product was being deleted and replaced by the second defendant's new product. - Passing off - Whether second defendant purposely copied the get up of the plaintiff's product packaging with the intention of misleading purchasers - Damages - Account of profits - Whether plaintiff's product likely to regain shelf space

Imputations - capacity - form - difference in substance

REAL PROPERTY - Easements - s 88K of Conveyancing Act 1919 - whether an easement should be imposed.

MOTOR ACCIDENTS - Late claim - application for dismissal of proceedings - Motor Accidents Act 1988 s 43A(7) - whether claimant had a "full" explanation for delay - prejudice not a relevant matter to consider in determining application for dismissal - WORKERS COMPENSATION - alternative rights and election between different remedies - Workers Compensation Act 1987 s151Z(1) - rule against double compensation - worker injured at work as a result of outsider's negligence - worker later aggravates injury at work - worker sues outsider for damages, including damages resulting from aggravation - whether workers' compensation entitlements should have been deducted from damages - DAMAGES - personal injuries - avoiding double compensation - offsetting of workers' compensation payments - Workers Compensation Act 1987 s151Z(1) - worker injured at work as a result of outsider's negligence - worker later aggravates injury at work - worker sues outsider for damages, including damages resulting from aggravation - whether workers' compensation entitlements should have been deducted from damages

WORKERS COMPENSATION ACT - worker - deemed worker - CONTRACT - commercial relationship - familial situation - Court order - EQUITY - direction by Court to Public Trustee for payments pursuant to Damages (Infants and Persons of Unsound Mind) Act - performance of conditions - equitable personal obligation

WORKERS COMPENSATION ACT - section 40 - weekly compensation - effect of worker's pregnancy - discretion - PROCEDURAL FAIRNESS

Criminal law - sentencing - murder

Mortgage - where loan agreement required defendants as mortgagors to take all necessary steps to provide the second plaintiff with a registered first mortgage - whether defendants required to execute a postponement of mortgage

CRIMINAL LAW - Drug Misuse and Trafficking Act 1985, s23(2)(a) - directions to jury - "reasonable explanation" consistent with innocence - fabrication of evidence - memory loss

Criminal Law - Prohibited comment by Crown Prosecutor - Directions to jury - No errors in direction - Alternatively no substantial miscarriage of justice

Appeal against severity of sentence - whether appellant's sentence should be reduced so as to restore disparity - appeal allowed.

CRIMINAL LAW - appeal against conviction and sentence - murder - defence of provocation - incorrect directions by trial judge as to the meaning of provocation contrary to s 23(2)(b) Crimes Act - incorrect suggestion by trial judge that the burden of proof was on the appellant - diminished impact of correct written directions

SPONSORSHIP - CONTRACT - CONSTRUCTION - ACCRUED RIGHTS

No question of principle

LOCAL GOVERNMENT - powers, functions and duties of councils generally - call for tender for the operation of kiosk - tender accepted - kiosk demolished by council - CONTRACT - general contractual principles - offer and acceptance - agreement of terms - Masters v Cameron (1954) 91 CLR 353 - whether acceptance of tender was conditional - whether a legally binding agreement existed - intention of parties at time of making agreement - construction of the terms of the licence agreement - whether draft plan of management was part of the terms and conditions of the tender - CROSS-APPEAL - costs - District Court Rules, Part 39A rule 25(4) - COSTS - D

Imputations - form - capacity - "corrupt"

CORPORATIONS - statutory compromise scheme equivalent to creditors' scheme of arrangement - plaintiff alleges it did not receive notice of meeting of creditors - seeks declaration that scheme is not binding on creditors because meeting was not convened in accordance with Court's orders - whether Court's orders approving scheme prevent plaintiff from subsequently raising this issue - whether plaintiff's prayer for relief should be struck out

Imputations - capacity - difference in substance