Cases and authorities

Criminal Law - application for leave to appeal against severity of sentence - whether life imprisonment was the appropriate sentence - leave granted to appeal - appeal dismissed.

Criminal law - charge of aggravated sexual assault - Crimes Act 1900 (NSW) s 61I - whether fair trial occurred - directions by trial judge to jury - failure to give jury instruction as to varying possible views of facts of case which might result in verdict of guilty on alternative lesser statutory count - serious procedural irregularity - whether acquittal or retrial appropriate relief to such injustice - Criminal law - evidence - whether acceptance of evidence denied appellant fair trial - contention that verdict of guilty unreasonable and unable to be supported because of inconsistent evidence - Criminal Appeal Act 1912 s 6 - credibility of complainant given inconsistent evidence

Criminal law: Appeal against conviction - wrongful rejection of evidence going to accused's good character - omission to lead other evidence of good character - whether miscarriage of justice.

Public authority - Land and Environment Court appeal - Roads Act 1993 (NSW) s 32 - statutory construction - compensation payable for loss of access to property - whether loss of access necessarily total - D

Procedure - proceedings in District Court seeking recovery of money - interlocutory orders striking out proceedings - claimant failing to appear - claimant filing Notice of Appeal - Registrar holding notice incompetent - whether appeal from decision of Registrar validly brought by commencement of separate proceedings - such procedure inappropriate - ND

LANDLORD and TENANT - re-entry - breaches of lessee's covenants to pay rent, construct fire stairs, pay outgoings - cross-claim for possession of Great Northern Hotel Newcastle - numerous issues on meaning and effect of lease - lessee claimed right of recoupment out of rent under Lee-Parker v. Izzett [1971] 1 WLR (Goff J) - covenant for payment of rent provided for payment without deduction - on the construction of the lease the lessor had no obligation to do the works for cost of which lessee claimed recoupment - alleged implied term requiring work to be performed by lessor rejected. TRADE PRACTICES - misleading or deceptive conduct - plaintiff claimed that misleading representations were made in negotiations for lease of Great Northern Hotel Newcastle - on the facts it was found that the representations were not made - consideration of time bar in Fair Trading Act 1987 (NSW) s68(2).

TRUSTS and TRUSTEES - removal of trustee - application for removal of trustee of will on grounds of failures to investigate possible claims arising out of transactions by testatrix - review of information available to trustee and to court - no reasonable basis for supposed claims - removal of trustee refused. - WILLS PROBATE and ADMINISTRATION - Executor - removal of executor - removal refused.

TRUSTS AND TRUSTEES - intention to create a trust - when intention to be inferred - TRUSTS AND TRUSTEES - intention to create a trust - concerning commercial arrangements - TRUSTS AND TRUSTEES - construction of particular contract - TRUSTS AND TRUSTEES - right of beneficiary to recover in personam, from recipient of trust property - when recipient of trust property gives consideration - first limb of Barnes v Addy

Family Provision. Application by infant children under Family Provision Act 1982 out of time. Consideration of factors to be taken into account for the purposes of s16 (2) and (3) of the Act. Decision by tutor on legal advice not to bring a claim and a change of heart after another family member succeeds in a claim. Extension of time refused and summons dismissed.

Criminal Law - Accused found not guilty on the ground of mental illness

EQUITY - injunctions - injunction to preserve subject matter of appeal - subject matter in clear jeopardy if injunction continued - balance of convenience favours withholding of further injunction

Insurance - Policies - Contract of Insurance - Indemnity under insurance policy - Damage caused by inundation of water - Whether inundation constituted a 'flood' within the terms of the policy - Policy excluded cover for 'flood' where: "Flood means inundation following the escape of water from the normal confines of any lake, reservoir, dam, river, creek or navigable canal, as the result of a natural phenomenon which has some element of violence, suddenness or largeness about it but does not mean inundation by water from fixed apparatus, fixed tanks, fixed pipes or run-off of surface water from surrounding areas" - Expert hydrological evidence - Meaning of the word 'lake' - Proximate cause - Wayne Tank principle: If a loss has two or more proximate or effective causes and at least one cause is excluded from cover, the insurer is not liable - Insurance Contracts Act 1984 (Cth) [ICA] - Proper construction of the words "clearly informed the insured in writing (whether by providing the insured with a document containing the provisions, or the relevant provisions, of the proposed contract or otherwise)" - What must an insurer do to clearly inform the insured in writing of the provisions of the insurance contract within the meaning of s 35(2) of the ICA - Whether the test is whether in all the circumstances the insurer has clearly informed the insured of the relevant provision, such that the mere provision of a document containing the relevant provisions is insufficient to discharge the insurer's obligation if the supply of that document did not of itself clearly inform the insured of his or her obligations - Whether the requirement on the insurer under s35(2) is satisfied in every case by the supply to the insured of a document containing the relevant provisions, as may be suggested by the words in parentheses immediately following the words "clearly informed the insured in writing" in s35(2) - What is the operation and effect of s 35 of the ICA in circumstances in which the damage was caused by a number of proximate causes, one of which was excluded from cover - Holding that: (1) The words in parentheses in section 35 (2) "whether by providing the insured with a document containing the provisions, or the relevant provisions, of the proposed contract or otherwise" are likely in most circumstances to result in the provision of such a document in and of itself satisfying the requirement to clearly inform - (2) There may however be special circumstances in which the complexity of or confusions within the document containing the relevant provisions (which one would expect would usually be the Insurance Policy itself) could be such that the mere provision of the Policy did not establish that the insurer had effectively informed the insured of relevant limitations

Appeal by case stated - excise prosecution - Excise Amendment (Compliance Improvement) Act 2000, item 62 - inconsistent with Crimes Act (Cth), s4F(1). ND

CORPORATIONS - deed of company arrangement - standing to apply for orders terminating deed under s 445D - whether plaintiff who claims to be a creditor has standing as an 'other interested person' under s 445D(2)(c)

PARTNERSHIP - dissolution and winding up - effect of provision that retirement of partner does not dissolve as to other partners - whether court should order taking of accounts or appointment of receiver - factors relevant to appointment of receiver

Minutes of Order - no question of principle

Contract for sale of land - death of one vendor - assets held as joint tenants - whether survivor can give notice making time of the essence - whether survivor can deal with hotelier's licence - whether purchaser can rescind - adequacy to answers to requisitions - effect of partnership on joint tenancy - no relief from forfeiture of deposit - leave to amend summons.

CRIMINAL LAW & PROCEDURE - murder trial - transactional evidence - evidence to make intelligible the alleged conduct of accused - evidence to show state of mind of accused at time approximate to death of deceased.

PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Rehearing - Power to withdraw reasons for judgment before orders made.

Negligence - motor vehicle accident - pedestrian injured in collision - liability amongst tortfeasors. ND

Dismiss proceedings - whether police can be sued for negligence in

DAMAGES [28]- Tort- Damage to property- Egg-shell skull rule applicable. WORDS & PHRASES- "Materially contribute".

PROCEDURE [97] - Supreme Court procedure - Practice under Supreme Court Rules - Pleadings - Defence - Extension of time for filing.

Strike out statement of claim - Misfeaseance in public office

EVIDENCE - 'without prejudice' privilege - whether solicitor's letter to other party's solicitor was in connection with an attempt to negotiate settlement, or merely a statement of position EXPERT OPINION EVIDENCE - whether plaintiff's liquidator can give such evidence - whether independence of expert is a pre-requisite to admissibility

Breach of contract and breach of fiduciary duty - damages for loss or account of profits - time for election - damages plus restitutionary orders granted - no further order for damages - leave nunc pro tunc to proceed against company in liquidation - leave to amend statement of claim on application made in address in reply.

PROCEDURE [500] - Judgments and orders - Set-off of judgments - General principles.

PRACTICE AND PROCEDURE - variation of consent orders based on compromise agreement - whether court has jurisdiction to vary orders other than in respect of time, where the underlying agreement is not open to variation on contractual and equitable grounds - court's discretion to vary orders with respect to time - relevant considerations

CRIMINAL LAW - appeal against conviction - inconsistent verdicts - conviction unsafe and unsatisfactory - appeal upheld.

Lease - Construction of lease

Torts- Nuisance- Negligence- Misfeasance- Damage caused by pressure-Liability on Council for roots of tree growing on footpath- On facts, Council liable. Procedure- High Court decision restating principles after decision at first instance- Effect on appeal. (D)

Corporations Act - application for adjournment of proceedings - no question of principle

Costs - General Rule - Costs follow the event - transfer of proceedings - Cross-Vesting legislation

CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Other matters - Incorporation of words used in other document.

Application for rectification of the register of members of the first defendant.

CORPORATIONS - voluntary administration - creditors' resolution for winding up - nature of winding up - whether court has jurisdiction to relieve plaintiff of obligation to hold a meeting of members under s 508(1)(b) - scope of s 447A

(SECURITY FOR COSTS)- Pt 53 of the Supreme Court Rules and s 1335 of the Corporations Act 2001 (Cth) - Whether plaintiff's case has reasonable prospects of success - Whether defendant's conduct caused plaintiff's impecuniosity - Whether an order for secruity would stultify plaintiff's capacity to pursue litigation.

CRIMINAL LAW & PROCEDURE - jury - application to discharge juror - distant relative of victim - whether trial to continue with 11 jurors - early stage of trial - availability of fresh jury panel - jury discharged - CRIMININAL LAW & PROCEDURE - application for change of venue - Tamworth to Sydney - murder trial - victim killed locally - lay witnesses all local - victim's family local - application refused.

CORONERS: Whether desirable that post mortem examination be performed - against the wishes of deceased and spouse - death clearly from one of a number of natural causes.

CRIMINAL LAW - appeal against conviction - conspiring to import prohibited imports to Australia, Customs Act 1901 (Cth), s 233B (1)(cb) - reliability of witness - adequacy of directions, s 165 Evidence Act 1995 - Criminal Appeal Rules, Rule 4 applied - directions regarding lack of explanations regarding certain evidence - directions concerning appellant's entry into the conspiracy - ND

CRIMINAL LAW - Apeal against conviction and sentence - Evidence - Admissibility and relevance of history given to doctor - Whether relevance should be limited under s136 - Comments by Judge where credibility is the issue - New trial or acquittal - Leave to cross examine on prior consistent statements - No reference to s192

CRIMINAL LAW - driving in a manner dangerous and causing grievous bodily harm - appeal against conviction - fresh evidence - whether evidence was available at the time of the trial - appeal against sentence - sentence excessive. - N/D

DEFAMATION - libel - published review of dance performance - jury finds imputation established but not defamatory - whether finding of jury perverse Defamation Act 1974, s 7A - ND

Corporations Act 2001 - voting by attorney - constitution construed to require satisfaction of provisions for voting by proxy - lodgment of power of attorney with company - meaning of "proxy" - history of voting by attorney - meeting convened by donee of power of attorney invalid - article requiring proxy to be member of company limited by guarantee invalid - chairman's right to chair meeting - meeting not stood over - quorum present before meeting convened - late start to meeting procedural irregularity - company limited by guarantee a public company - article restricting proxies to members invalid.

Residential Parks Act 1998 - Meaning of "exscess water charge" and "water consumption charge" - whether owner can pass on excess water charge to resident.