Cases and authorities

CRIMINAL LAW - Sexual offences - appeal against conviction - inconsistent verdicts - whether convictions were unsafe and unreasonable - ND

Trade practices - sale of apartment off the plan - agent's representation as to likely return - Trade Practices Act 1974, s51A - "guaranteed" net return - agent's conduct unauthorised to the extent that he stated the return to be "guaranteed" - representation not exclusively promissory - no reasonable grounds for categorical "guarantee" - causation - challenge to credibility-based findings of trial judge - damages where property purchased - liability of agent to indemnify principal stemming from exceeding authority to market in particular way (ND)

Civil procedure: action for damages for personal injury - motor vehicle accident - statement of claim against the insurer under s 54, Motor Accidents Act - allegation of identified driver - amendment to add alternative allegation of unidentified driver.

REAL PROPERTY [421] - Easements - Particular easements and rights - Rights of way - Other cases - Right of carriageway - Parking or stopping.

Legal Profession Act 1987 - ss38FB, 38FC, 38FE - "fit and proper person to hold a practising certificate" - whether dishonesty necessary - dishonesty established

CORPORATIONS - winding up - termination of winding up on application of contributory - need to show solvency and financial stability - such application is not occasion for disputes about claims to be determined - unsubordinated claims of related parties are relevant despite their willingness not to serve subsequent statutory demand - statutory right of creditors to interest under s.563B discussed - potential benefits to some creditors in relation to such interest not made known to them - termination premature

APPLICATION FOR SEPARATE TRIAL OF ISSUES

Make false instrument with intent to induce another to accept it as genuine - discount for plea of guilty - "first reasonable opportunity" for plea - parity of sentencing - "special circumstances" - need for general deterrence in significant fraud cases

Criminal law - appeal - parity or relativity between co-offender - notice of abandonment to be set aside in light of decision of CCA in co-offender's appeal - conceded basis for re-sentencing.

Criminal law - appeal - sentence - fraud and forgery - two charges encompassing over 800 acts of dishonesty over long period - position of trust - sentenced to maximum less discount for plea and totality - no account in sentences for favourable subjective circumstances - appeal upheld - appellant re-sentenced.

Sentence appeal - Head sentence - Non-parole period - Hierarchy of offenders - Importation of drugs

NEGLIGENCE - Breach of duty - failure to repair footpath although alerted to potential danger - relevance of Council's footpath policy that only certain defects will be rectified.

Break and enter and commit a serious indictable offence in circumstances of aggravation - discount for plea of guilty - "special circumstances" - sentence not manifestly excessive

Family Provision. Application by widow and son under Family Provision Act. Estate of $1.7 million tied up in a discretionary trust for 80 years. Orders for legacies to both plaintiffs.

Extend time to file amended statement of claim - security for costs

PRACTICE AND PROCEDURE - interlocutory process by examinees to set aside examination summonses and orders for production on grounds, inter alia, of abuse of process - examinees' application for access to liquidator's affidavits supporting issue of examination summonses - examinees' notice to produce to liquidator to support application to set aside examination summonses - relevant principles

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

Sentence - appeal against alleged severity - two counts of malicious wound with intent to do grievous bodily harm - no question of principle

CRIMINAL LAW - sentencing - armed robbery - subjective features

CRIMINAL LAW - sentencing - armed robbery - multiple offences - use of blood filled syringe said to be AIDS - infected - good propsects of rehabilitation - applicant said to be "at the crossroads".

Criminal Law - Appeals - appeal against conviction - whether proviso applies under s 6(1) of the Criminal Appeal Act 1912 (NSW)

Insurance - exemption clause - liability excluded when defective design contributes to claim - injury caused by "porcupine ball" - whether unique surface of ball constitutes design - whether design defective - exemption clause applicable - s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW). D

NEGLIGENCE - causation - solicitors acting for purchaser of house - failed to advise client to obtain a building report - whether client relied on solicitors in that respect - whether client would have proceeded without building report even if so advised - trial judge found she did not rely and would have proceeded - question of fact - no error shown. ND.

Sentencing appeal - breach of a s12 bond - no question of principle suitable to be determined by a two Judge Bench

Defamation - imputations - capacity - difference in substance - particulars of aggravated damages - identification

Extension of time - ss 60C & E Limitation Act - parents claims for nervous shock - birth of a child

INJUNCTION - STATUTORY POWER - NON APPEARANCE OF DEFENDANTS - EVIDENCE OF INTENTION NOT TO COMPLY WITH OBLIGATION

PROCEDURE - access to court file by non-parties - application by media for access to amended statement of claim - one defendant objecting - defences neither filed nor due for filing - defendant proposes to put plaintiff's allegations to vigorous test - access at such point not required by principles of open justice - potential prejudice to defendant - access refused

LOCAL COURT - CIVIL CLAIM - COMMON MONEY COUNT - FACTUAL FINDINGS BY MAGISTRATE - NO ERROR IN RESULT

PRACTICE AND PROCEDURE - Amendment - Application to rely on matter not raised at first instance - TORTS - Negligence - Whether risk of sufficient magnitude to require alleviating action - Causation - Whether suggested action would have avoided accident. ND

EQUITY - rescission - forfeiture - unconscionable conduct - exceptional circumstances

Sentence

Negligence - Duty of care - Personal injury - Injury sustained playing rugby - Whether New South Wales Rugby Union Limited owed a duty of care to plaintiff to so organise and regulate the playing of the game of rugby union so as not to expose the plaintiff to unnecessary risk of injury

Practice and procedure - medical negligence claim - application for appointment of conference between experts - application opposed - applicable principles.

Pleading - application to strike out statement of claim - whether pleading deficient and, if so, in what respects.

Claim to damages regulated under Workers Compensation Act 1987, section 151 Z (2) - Personal Injury - Liability of employer - Alleged injuries sustained by plaintiff employee after fall down stairs at work - Medical reports and other evidence inconsistent with plaintiff's evidence of fall - Whether plaintiff fell on date alleged - Whether plaintiff fell on prior occasion - Contributory negligence - Plaintiff employed as office manager - Damages not litigated - Assessment of damages

CORPORATIONS - receivers managers and controllers - examination summons to director - what is "reasonable cause" not to comply - Corporations Law Rules, Rule 11.5 - issue of warrant for arrest of director - factors relevant to discretion

Wills, Probate and Letters of Administration - Wills - Codicil - Informal documents - Whether two hand-written documents purported to be either Will, amendment to Will or revocation of Will - Whether made as stopgap pending formal Will - Testamentary intentions of the deceased

Claim against Fidelity Fund - client and solicitor engaged in tax fraud - solicitor steals from client - whether "entrustment" - whether in "course of solicitor's practice

Defamation - striking out of defences of truth, contextual truth and comment - estoppel by record - abuse of process - cross-claim struck out - no cause of action pleaded

CRIMINAL LAW: Application for leave to appeal against sentence: charges of kidnapping and related charges of sexual assault arising from the abduction of two young men: effective total sentence (Sentencing Act 1989) of 8 years (mt 5 years).

CRIMINAL LAW - sexual assault - multiple counts - amendment of particulars in relation to different counts - no amendment of indictment except as to dates - CRIMINAL LAW - evidence - admissibility of reports tendered in proceedings in Family Court

Declaration Sought - breach of section 52 of the Trade Practices Act 1974 - whether trustee entitled to be indemnified from trust assets - section 59(4) of Trustee Act 1925 - whether activitiy in respect of which indemnity is claimed must be "reasonable" and/or "proper" - appeal dismissed with costs.

Workers Compenation - leave to revoke election - Workers Compensation Act 1987 s 151A(5) - whether judge had wrongly exercised discretion under s 151D - whether prejudice results from respondent's delay - onus of proof - test for what justice of the case requires - whether inability of the appellant to call witnesses due to respondent's delay would cause prejudice. D

Negligence - appeal - quantum of damages - past economic loss - future economic loss - future care - assessment within discretion - judge’s basis of reasoning revealed in reasons - appeal dismissed. ND

CORPORATIONS - Were director's or officer's duties breached under ss180, 181, 182 and 183 of Corporations Act - Relevant principles applicable to those duties and to determining who is an officer and to delegation by a director - Were each of three directors in breach of those statutory duties as director or officer by reason of their respective involvements in certain transactions - These transactions encompassed the making available of $10 million to an intended unit trust associated with the first director and initially undocumented and then the immediate application of that $10 million in part in buying shares in parent company of the company providing the $10 million and subsequently in application in part in buying unlisted investments owned by that director's associated company with capital raising difficulties and in making loans to associates of that director - Relevance of fact that no approval or ratification obtained to these transactions from investment committee or board - Role of other two directors and their respective responsibilities - Accessory liability by reason of involvement of directors in breach of s208 of Corporations Act (related party benefits) and s260A of Corporations Act (financial assistance for purchase of shares) - Did the relevant companies contravene these provisions - How the provisions to be construed in particular "financial benefit" and "arm's length terms" - What is required for such accessory liability under s79 of Corporations Act in the way of "involvement" - Whether Jones v Dunkel inference may be drawn from failure by Defendants to give evidence in these proceedings for civil penalty when concurrent Royal Commission - Causation and applicable test - Mode of calculation of loss - Relief by way of declaration - Other relief sought including compensation and banning orders to be dealt with separately.

Summary judgment - failure to pay rates, sale of (and alleged breaches of statutory duty and negligence)

Criminal Law - Sentence for conviction of murder