Cases and authorities

COSTS - non-party - plaintiff's proceedings were dismissed with costs - defendant applied for order for payment of costs by Director who was principal figure in the commpany and the litigation and produced in evidence bogus documents in support of plaintiff's case held that an order could be made against the Director under SCR Pt 52A r4(2) and (5)(d) as there was an abuse of process.

PROCEDURE [90] - Supreme Court procedure - Practice under Supreme Court Rules - Parties - Representative orders - Whether person should be appointed to represent trust where no current trustee but the only two beneficiaries are parties.

Costs - Interests - Interest on costs to compensate successful litigant for moneys outlaid to legal representatives - recompensing litigants for being out of pocket - jurisdiction - principles

Contract - offer of settlement - misunderstanding of terms by one party - whether unilateral unexpressed reservation vitiates agreement

Abuse of process - evidenced by settlement discussions - whether discussions admissible - whether abuse of process is "deliberate abuse of a power" within s 131(2)(k) Evidence Act 1995 - whether evidence of settlement discussions adduced on voir dire is a disclosure within s 131(2)(b) - mere hope for commercial advantages not inappropriate motive for litigation.

Appeal from Compensation Court - Compensation Court Act 1984, s 32(1) - whether grounds of appeal raise any point of law - whether adequate reasons - ND

EQUITY [201] Trusts- Amendment of trust deed- Power and ambit of power to amend strictly construed.

Appeal from Magistrate's ruling - leave to Prosecution to call evidence in rebuttal - Justices Act 1902 s104(4)

EQUITY - Unconscionability - Alleged representations preceding contract later departed from by purchaser who had earlier acquired house property at gross under-value - Vendor much older woman of whom purchaser a close friend despite 44 year age difference - Family of the vendor apply in equity for remedial constructive trust assisted by tracing into proceeds of sale of property (as reinvested) - Estoppel - Limitation period - Laches.

Sentence appeal - various sexual offences against a child under ten - whether sufficient allowance for admissions to the police under the Ellis principle.

Section 11 of the Workers' Compensation Act 1926 - whether respondent was capable of earning his full pre-injury wage and therefore no award should have been made - whether award calculated by trial judge could be justified - appeal dismissed with costs.

CORPORATIONS - creditor's statutory demand - debtor company relies on creditor's incorrect representation as to last day for application to set aside the demand - estoppel not available - TRADE AND COMMERCE - misleading conduct - whether solicitor's letter to another solicitor expressing opinion about time limit was misleading - whether stay of winding up should be ordered under s 87 of Trade Practices Act - whether other equitable grounds support stay of winding up

Application for declaration - power of NSWALC to remove Treasurer from office - implied power of removal - application of Interpretation Act 1987 - whether excluded by implication - application of Code of Ethics - legitimate expectation that would apply - whether breach of natural justice to disregard code procedure - aggrieved person also member of deciding body and participating in decision making process.

Court of Criminal Appeal - jurisdiction - Criminal Appeal Act 1912 (NSW) s 5F - provision conferring jurisdiction to hear appeals from interlocutory orders - whether orders below interlocutory or final - meaning of words "I discharge the accused" - whether distinction between discharge and acquittal - autrefois acquit

CRIMINAL LAW - Crown appeal against sentence - appeal against conviction out of time - false and misleading statements - Corporations Law - lease with Council - false assertion of compliance with prerequisite allotment of shares.

Tort - negligence - personal injury - District Court appeal - liability - Practice and procedure - written and oral submissions - oral argument lacking adequate basis in written submissions - necessity of compliance with procedure by counsel for efficient functioning of courts - D

CORPORATIONS - winding up - termination of winding up - subordination of shareholder loan as condition of termination - undertaking to court is not most suitable means of subordination

CORPORATIONS - winding up - leave to proceed against company in liquidation - exercise of special leave to appeal to High Court - no other avenue available to vindicate applicants' supposed rights - other factors also favour grant of leave to proceed

NEGLIGENCE - medical practitioner - failure to diagnose condition

Notice of exercise of option to renew - authority and service - jurisdiction of Local Court.

Extension of time - s 151D Workers Compensation Act

Application for Verdict by Direction - Murder - Accessory before the fact and extended common purpose - Sufficiency of evidence

CRIMINAL LAW AND PROCEDURE - whether confession was voluntary - plea of guilty - fresh evidence - Police Royal Commission - miscarriage of justice - convictions quashed - acquittal

SUCCESSION - Probate - Revocation - whether will revoked by writing "cancelled" with testator's signature across copy of will - whether s17(3) of the Wills Probate and Administraction Act 1898 can bear on actions involving copy - whether revocation under s18A

Sentences for serious sexual offences not excessive

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Law. Demand set aside. No question of principle.

CORPORATIONS - winding up - directions to liquidators - direction given

PRACTICE - Adoption of Referee's Report - determination of assets and liabilities of a partnership at 30 June 2000 - Supreme Court Rules 1970 Pt72

Negligence - personal injury sustained in Army Reserve military activity - serious conflict of medical evidence - conflicting possibilities affecting calculation of damages for loss of earning capacity, both past and future - damages estimated in accordance with dictum of Brennan & Dawson JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640

[CONTRACT] Terms of contract between plaintiff and defendant - whether defendant agreed to pay plaintiff 4% commission on incremental sales "for the life" of certain contracts won by the plaintiff. - [ESTOPPEL] Whether defendant represented to plaintiff that he would be paid 4% commission on incremental sales "for the life" of the contracts won for the defendant - whether defendant relied upon representation to his detriment.

CORPORATIONS - Winding up - whether the sale of a business of the company was an insolvent transaction within the meaning of s588F of the Corporations Act 2001

Crown appeal - 6 offences - one count of escape lawful custody - 5 offences committed whilst unlawfully at large - non-parole period - findings of fact not supported by evidence - sentences in total manifestly inadequate - respondent resentenced

CRIMINAL LAW - murder - defence of mental illness

Courts and Judges - cross-vesting - exclusive jurisdiction clause - Test for determining the most appropriate court

SUCCESSION - wills probate and administration - construction and effect of testamentary dispositions - particular will construed - resolution of factual dispute about whether contract or estoppel existed that will not be administered according to its terms

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - construction of section 20 Property (Relationships) Act 1984 application of transitional provisions for 1999 amendments - whether contributions after end of relationship can be taken into account - whether financial contributions can be taken into account under section 20(1)(b) - meaning of "just and equitable" - EVIDENCE - no Jones v Dunkell inference available where witness not called is a solicitor and solicitor giving evidence would involve waiver of legal professional privilege - EVIDENCE - effect of failure to cross-examine - PERSONAL PROPERTY - ownership and possession - title to motor vehicle

CORPORATIONS - winding up - statutory demand - essential nature of statement to the effect that debt is not only owing but also due and payable - essential that there be clarity as to amount claimed - relevance of recipient's pre-existing knowledge - statutory demand properly set aside - appeal dismissed

CRIMINAL LAW - Defence of mental illness - Self defence

LOCAL COURT (CIVIL CLAIMS) - ASSERTED ERROR BY MAGISTRATE - FACT FINDING - SALE OF BUSINESS - NO SPECIAL POINT OF PRINCIPLE

CORPORATIONS - Procedure - Equity - s1317E(2) of Corporations Act - What degree of particularity required for a declaration of "conduct" under that provision as a prerequisite to imposing a civil penalty - Nature of declaration of right in equity - Effect if any of Statute.

CORPORATIONS - winding up - liquidator's examination - circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation - EVIDENCE - liquidator's examinations - whether evidence given at is governed by Evidence Act 1995 (NSW) - EVIDENCE - legal professional privilege - circumstances in which joint retainer of solicitor exists - EVIDENCE - procedure to adopt when deciding whether legal professional privilege does not exist - EVIDENCE - waiver of client legal privilege - disclosure of substance of advice - disclosure made knowingly and voluntarily - disclosure by agent or employee authorised to make it - disclosure made under compulsion of law

PROCEDURE [671] - Costs - Security for costs - Practice matters - Order for security by cash deposit or bank guarantee - Application for variation of order to permit guarantee to be given by controller of plaintiff and his wife.

Sentencing - serious drug and sexual offences - applicant assaulted by burglars and suffers quite severe brain damage substantially affecting his conduct - insufficient allowance for medical condition.