Cases and authorities

Judicial Review - Law Society Fidelity Fund claim - Wednesbury unreasonableness - Natural justice

Challenge to retainer of plaintiff's solicitor's - onus of proof - action instituted by solicitor on instructions by donees under power of attorney - no resolution of Board of Directors - power of attorney given under joint venture agreement - construction of power of attorney - refusal of leave to solicitor retained by directors to enter an appearance - rival claim to retainer noted.

TORT - nuisance and negligence - occupier's duty in respect of natural hazard on its land - whether occupier of higher land has duty, enforceable by mandatory injunction, to reinstate retaining wall - whether occupier of higher land took adequate steps to avoid collapse of wall - whether occupier of higher land negligent in removing plants - whether occupier of lower land negligent in failing to maintain retaining wall - REAL PROPERTY - whether easement for support of Torrens land arose by prescription

RES JUDICATA - fraud - due diligence - fresh evidence - s 66 Motor Accidents Act

Extension of relevant limitation period - viable cause of action - delay and explanation for delay.

APPLICATION FOR SEPARATE TRIAL OF ISSUES

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - interlocutory order for exclusive occupation of home - power of Supreme Court to grant - section 53 Property (Relationships) Act 1984 - applicability of principles used in similar cases under section 114 Family Law Act 1975 (Cth) - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - application for adjustment of property interest under section 20 Property (Relationships) Act 1984 - ability of court to take into account contributions made after conclusion of relationship - REAL PROPERTY - co-ownership - whether interlocutory order under section 53 Property (Relationships) Act 1984 that one of the joint owners of property have exclusive occupancy requires person granted that order to pay an occupation fee

SUCCESSION [274]- Wills- Specific legacy- Ademption- Exceptions to rule that ademption occurs if testator does not possess property at date of death.

Land and Environment Court - Interlocutory orders - Appeal - Security for costs - Plaintiff impecunious - Power of Land and Environment Court to order security for costs - Trial proceedings - Statutory construction - Environmental Planning and Assessment Act 1979 (NSW) s 69(3) - D

Summons for judicial review - allegation of wrongful failure to state a case - whether evidence should not have been admitted under section 65 of the Evidence Act - alleged failure to order the recall of five witnesses - bias - failure to appear at the commencement of an appeal - summons dismissed with costs.

Personal Injury - appellant fell while riding bicycle - whether sea wall should have been made level with path - breach of duty of care - causation - appeal dismissed with costs.

CONTRACT - security for costs - ability of plaintiff to meet its obligations in the event of a costs order being made against it - position of plaintiff in the event of a winding up - whether the court has jurisdiction to make order

CONVEYANCING - vendor and purchaser - vendors selling as mortgagees exercising power of sale - one of the thirty-seven mortgagees under the mortgage holding as tenants in common died prior to the contract for sale of land being entered into - purchaser failing to serve transfer as required by contract - vendor failed to give details required for preparation of transfer having regard to death of mortgagee as required by contract - vendor served notice to complete making both time and date of the essence - but not referring to failure to serve transfer - transfer submitted 2 days before date fixed for completion - signatures of all vendor mortgagees not obtained within the time allowed - vendors' solicitor purportedly sought to extend the time originally made as essential - purchaser did not accept extension and attended to settle as required by original notice - vendors could not complete - whether purchaser in default could take advantage of vendors' default - whether party giving notice to complete could waive or alter its terms - whether notice to complete operated to waive rights to require service of transfer

Summary judgment application - Jurisdiction of the Supreme Court to deal with matter under the Australian Constitution - Treaty - Aboriginal sovereignty

Supreme Court - discretion to dispense with trial by jury - what factors are relevant to the exercise of the discretion whether considerations of a universal character relevant to jury trial may be relied on - whether the factor relied on must be significant and specific.

Extension of limitation period - second application - largely same evidence - additional material could have been adduced on first application - approach of the court.

Criminal law: sentencing - murder and escape - offender committed murder while an escapee - serving sentence for an earlier murder.

Tort - Negligence - District Court appeal - Liability - Damages - Tort - Quantum - ND

Evidence - discretion to admit expert evidence of which late notice was given - no question of principle

Building contract - questions of statutory construction - non-compliance with statutory requirements - non-enforceability of remedies.

REAL PROPERTY - caveats - leave to lodge another caveat under s 74O Real Property Act 1900 - principles applicable - REAL PROPERTY - caveats - application to lodge further caveat under s 74O Real Property Act 1900 - circumstances in which leave needed

Administrative law - summons brought by prisoner seeking review of administrative decisions - principles applicable.

removal of arbitrators - pressure to agree to cancellation fees - whether arbitrators should be represented - court power over costs of abortive arbitration - power to appoint new arbitrators

CRIMINAL LAW - sentencing - Crown appeal against leniency of sentence - whether sentence manifestly inadequate - consideration of objective gravity of offences against subjective circumstances of offender - whether subjective considerations given too much weight - CRIMINAL LAW - sentencing - Crown appeal against leniency of sentence - whether commission of offences while on parole considered

Compensation Court - Damages for permanent impairment to worker's neck and arms - Appeal - Liability and quantum - Procedure - Summons seeking leave to appeal filed out of time - No appeal as of right - Whether strict application of Supreme Court Rules would occasion injustice - D

SUCCESSION - Family provision and maintenance - Whether provision by testator inadequate - Necessity to determine what if any provision made - Provision by testator for person with legitimate claim - Relevance of this to what is "inadequate" and what is "proper" in relation to another person with a legitimate claim - Relevance of marriage and care of children to strength of surviving partner's claim. D.

COSTS - SUCCESSION - Family provision and maintenance - Appeal succeeds on point not clearly notified before trial. ND.

Application to vary sentence - whether non parole period could be reduced - appeal dismissed.

Criminal Law - Sentence - Relevance of advanced age of offender and delay in prosecution

Extension of time within which to commence proceedings - ss 60G & 1 - add hospital as defendant

Practice and procedure - Jury - Report by jurors of events - Irregularity - Discharge of jury or juror - Test to be applied - Procedure to determine facts - Voir Dire examination of jurors by court

DAMAGES - assessment of damages for breach of contract - present value of future income stream - PROCEDURE - costs - where each side enjoyed success - where "overall winner's" success as plaintiff confined to minor claim and defendants otherwise enjoyed substantial success - apportionment of costs - costs orders in favour of both parties - indemnity costs not awarded despite Calderbank letter

PROCEDURE [671] - Costs - Security for costs - Practice matters - Whether security given as ordered - Whether defence ought be filed pending determination of adequacy of security given.

CORPORATIONS - shares - allotment - subscription moneys arguably not paid - "holding lock" imposed by company to prevent transfer of shares - serious question to be tried as to whether "holding lock" justified - ASX listing rules - shares now held by transferees of allottee - balance of convenience favours retention of "holding lock" pending trial

PROCEDURE [89] - Supreme Court procedure - Practice under Supreme Court Rules - Parties - Joinder and addition of parties - Persons parties to proceedings but not joined as defendants to claims for fraud involving them - Constitution of proceedings so as to make them defendants to fraud claim - Summary disposal - Application to strike out portions of claim on basis defences of res judicata and issue estoppel must succeed - Principles applicable.

Winding up - unfair preference - insolvent transaction - defences - whether reasonable grounds to suspect company insolvent - whether transaction part of continuing business relationship - Running account - Corporations Act ss 588FA, 588FG(2)

Family Provision. Claim by a nephew in respect of a large estate left to three charities. Plaintiff clearly an eligible person with substantial connection to the deceased. Orders for a legacy and a life estate.

Criminal Law - Sentence for conviction of murder

On application to strike out contextual truth defence

EVIDENCE - admissibility - Hearsay Rule - admissions - tender of part of a document - document containing representations adverse to interest of party and also containing self-serving representations - some self-serving representations relating to adverse respresentations, others to different subject matter - which parts admissible to prove facts asserted therein - EVIDENCE - admissibility - admissions - related representations - Evidence Act 1995 ss 48, 59, 64, 81, dictionary (admissions).

POLITICAL PARTIES - REGISTRATION - CANCELLATION BY ELECTORAL COMMISSIONER - REGULAR EXERCISE OF STATUTORY POWERS AND DISCRETIONS

[JUDGMENTS] Presumption of Regularity - Whether a judgment "faxed" to the parties took effect under the Local Courts (Civil Claims) Rules 1988 - [APPEAL] Appeal from refusal to set aside default judgment - Whether Magistrate embarked upon deciding the truth or otherwise of the case the Appellant would seek to make upon the proposed defence.