Cases and authorities

Family Law - De facto relationship - Adjustment of interests of parties in property - Date of commencement of de facto relationship - Matters to be taken into account - Respective contributions of parties - Court should have regard to contributions made before commencement of de facto relationship - Evidence concerning present and likely future needs of the parties should be disregarded - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (New South Wales) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Commonwealth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Whether contributions made by one party to the children after termination of the relationship are contributions of the nature recognised by section 20(1)(b) of the Property (Relationships) Act - In considering the respective contributions of the parties the Court is not required to undertake a reductionist process analagous to the taking of partnership accounts, but should make a holistic value judgment - Conduct of Plaintiff in regard to chattels of Defendant.

LOCAL COURT - NEGLIGENCE - PROPERTY DAMAGE TO COLLIDED MOTOR VEIHCLES - DECISION OF FACT - PARTICULARS - NO BASIS FOR APPELLATE INTERVENTION

SUCCESSION [258]- Executors- Removal- Not ordinarily be interlocutory motion- Grant to be revoked if one of two executors removed.

Appeal from Residential Tribunal - whether error of law made by Tribunal - meaning of "goods, services or facilities provided" - whether implied term in a residential tenancy agreement obliging the landlord to take steps to control the activities of strangers

CRIMINAL LAW - appeals - appeal against conviction - murder - fitness to be tried - whether an intellectually disabled offender (not suffering a mental illness) falls within scope of Mental Health (Criminal Procedure) Act 1990 (NSW) - statutory interpretation - history of common law - whether issue of fitness had been raised in good faith - whether additional fitness hearing should have been ordered - miscarriage of justice - new trial

CRIMINAL LAW AND PROCEDURE - SENTENCE - ONGOING SUPPLY OF DRUGS - ADMISSIBILITY OF EVIDENCE OF INTENTION TO EXPAND ACTIVITY - RELEVANT TO REBUT POSSIBLE CLAIM OF ISOLATED ACTIONS OR INTENTION TO CEASE - NOT AVAILABLE TO ASSESS CRIMINALITY OF CRIME CHARGED - PARITY OF NON PAROLE PERIOD GIVEN TO CO-OFFENDER - FINDING OF ENGAGEMENT IN COMMERCIAL ACTIVITY

CRIMINAL LAW AND PROCEDURE - SENTENCE - CONTINUING SUPPLY OF DRUGS - SERIOUS POSSESSION ON FORM 1 - SENTENCE NOT EXCESSIVE - NO SPECIAL MATTER OF PRINCIPLE

CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - aggravated sexual assault - indecent sexual assault - sexual offences against children - failure to complete Cedar Cottage programme - whether correct starting point for sentence - whether accumulation of sentence appropriate - no error of sentencing principle - whether sentencing Judge took too narrow view of special circumstances in not finding such circumstances to exist - inappropriate for court to embark upon settling manner of sentencing principle as to what may be special circumstances - that issue is reserved for a five judge bench.

CRIMINAL LAW AND PROCEDURE - SENTENCE - SEXUAL OFFENCES AGAINST YOUNG CHILDREN - LATE PLEAS OF GUILTY - NO SPECIAL POINT OF PRINCIPLE

CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - parity - whether justifiable sense of grievance - where co-offender sentenced in Children's Court to 100 hours community service after four months detention pending sentence - applicant had long criminal history while co-offender also had blemished record - offence committed while applicant on parole and co-offender subject to conditional liberty - applicant had long history of substance abuse while co-offender had minor record of recreational use - 18 months difference in age - would have been appropriate for sentencing Judge to pay some regard to co-offender's sentence - appropriate to intervene to limited extent.

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

Whether leave should be given to continue proceedings notwithstanding an order under Supreme Court Act 1970, s84(2) - No question of principle involved

Interrogatories - defense under s 377(8) Criminal Code Act (Qld) 1899 - aggravated damages - conduct of counsel outside Court

Practice and procedure - Discovery - production of documents on notice to produce

Review of decision of Registrar.

CORPORATIONS - Bonus payment - Standing of receiver to challenge liquidator's determination of claim or proof of debt - Is it "wages" for purposes of the statutory priority under ss433(3)(c) and 556(1)(e) of the Corporations Act - Meaning of industrial agreement - Relevance of appointment of receiver and later liquidator to course of dealing relied upon to refute mere agreement to agree. - CONTRACT - Interpretation - Principles of interpretation - Agreement to agree or otherwise void for uncertainty - Scope for implication of term - Part performance - Relevance of principle that party not to take advantage of own wrong - Course of dealing - Agreement to agree - Specific performance and relevance of subsequent events.

PROCEDURE [557] - Costs - General rule - Costs follow the event - Costs of issues - Three applications involving defendants and cross defendant heard together - Issues intertwined - Two decided one way and one the other.

EQUITY - trusts, charges and proprietary estoppel - friend and wife move in with old man and pay for extension to his house, pursuant to oral agreements, and rent out their house - no promise representation or conduct to found trust, charge or proprietary estoppel.

LANDLORD & TENANT [48]- Rent- Covenant to pay the rent in advance- Dispute as to whether rent wholly paid- Construction of covenant.

CRIMINAL LAW AND PROCEDURE - SENTENCE - 13 YEAR DELAY CAUSED BY APPELLANT ABSCONDING AND RECEIVING INTERSTATE SENTENCE FOR FURTHER SERIOUS OFFENCES - WHEREABOUTS NOT APPRECIATED BY NSW AUTHORITIES - RELEASE FOR EXTENDED PERIOD AFTER SERVING INTERSTATE SENTENCES - TOTALITY

CRIMINAL LAW AND PROCEDURE - SENTENCE - PRIOR CONVICTIONS OF OFFENDER - MAY DEPRIVE OF LENIENCE BUT DO NOT AGGRAVATE THE INSTANT CRIME - APPELLANT RESENTENCED

CRIMINAL LAW - appeals - appeal against sentence - robbery in company - parity - whether legitimate sense of grievance - submission not made good - doctrine of parity should not be applied so as to require imposition of an inadequate sentence - appeal dismissed.

CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - sexual offences against children - whether too much weight given to general deterrence - no error of law - applicant's subjective circumstances taken into account - accumulated sentence appropriate so as to reflect totality of criminality involved - appeal dismissed.

Company Law. - Application to set aside statutory demand. - Demand set aside. - No matter of principle.

CORPORATIONS [228]- Winding up order-Partially vacated on appeal by misunderstanding- How dealt with.

Application by liquidator of plaintiff/cross-claimant in liquidation for dismissal of proceedings so far as concerned its claims - Application by co-plaintiff/cross-claimant to be heard in opposition to liquidator's entitlement to move for dismissal of proceedings upon the basis of a pending appeal impugning the court order which had appointed the liquidator - holding that any such application was appropriate to be made elsewhere-orders made pursuant to Part 34 Rule 6A - costs of a party seeking dismissal of proceedings so far as concerned its claims.

PARTNERSHIP - joint venture - real estate development - dispute over quantum of item to be allowed one Joint Venturer for providing services of Project Manager - it was alleged that there was an oral agreement varying provision of written agreement which fixed maximum of $50,000 - claim for $98,000 was rejected on finding that there was no oral variation agreement.

Children's Court - emergency protection and care applications - interim orders - power to vest "care responsibility" in the Director-General

REAL PROPERTY [409]- Easements- Whether easement can be granted to exist for limited but indefinable time.

Evidence - whether judge at subsequent trial required to follow ruling of prior judge on admissibility of evidence - s137 Evidence Act 1995 - whether trial Judge should have allowed numerical probability evidence derived from DNA testing to go to jury - paternity index - relative chance of paternity statistics - Bayes' Theorem - whether probative value outweighed by risk of unfair prejudice - "prosecutor's fallacy". (D)

CRIMINAL APPEAL - joint trial - cut throat defence - record of interview withdrawn by Crown because induced by threat - co-accused uses answers in withdrawn record of interview to cross-examine accused - Evidence Act, s84 - "admission".

MOTOR ACCIDENTS - Motor Accidents Act 1988, s 28 - whether trial judge erred in concluding that identity of vehicle not established. ND

Assessment of Damages - economic loss - failure to give adequate reasons - no question of principles - ND

Admiralty - C & F contracts for sale of legumes - contractual provision for letters of credit to be opened by third party - legumes shipped from Australian ports to Calcutta under voyage charter to seller by time charterer - bills of lading issued with seller as shipper and third party the notify party - three letters of credit, opened on application of third party - bills of lading 'switched' substituting third party as shipper and buyer as notify party - documents discrepant under the terms of letters of credit - acceptance of discrepant documents under two letters of credit - letters of indemnity given by seller to time charterer against delivery to buyer of cargo the subject of accepted documents without presentation of bills of lading - instruction to Master by time charterer with authority of owner to deliver cargo to buyer without presentation of bills of lading - implied indemnity by time charterer to owner - seller's letters of indemnity signed by seller's bank - effect of bank's signing of letters of indemnity - effect of switching bills on liability under indemnity - third party holder of bills of lading and pledgee of cargo the subject of accepted documents - direction by third party to time charterer to deliver cargo to buyer against banker's guarantee - nature and effect of direction - action by third party against owner for conversion of cargo delivered to buyer - liability of owner to third party - liability of time charterer to owner - liability of seller's bank to time charterer - proper law of actions in contract and tort - principles of liability in negligence causing economic loss - settlement of third party's action against owner - reasonableness of settlement - whether directions to deliver cargo to buyer interfered with contractual relations - principles of wrongful interference with contractual relations - measure of damages in conversion.

CORPORATIONS - Pleaded case leaves no room for argument that one-third interest not intended.

BANKRUPTCY - whether proceedings in Supreme Court to avoid allegedly fraudulent disposition is a "legal proceeding" for the purposes of the Bankruptcy Act (Cth) - whether such proceeding is "in respect of a provable debt" - whether Supreme Court has jurisdiction to grant leave to proceed under s.58(3)(b)

INJUNCTIONS - Mareva Orders - non-innocent third parties - on complex facts where assets of family trusts had been transferred to other companies controlled by same principals, Mareva Orders were made.

Legality of Search Warrant.

EVIDENCE [198] - Course of evidence - Reopening case and recalling witnesses - By parties - First trial of separate questions concluded - Principles applicable - PROCEDURE [95], [101] - Supreme Court procedure - Practice under Supreme Court Rules - Pleadings - In general - Applications to strike out as prejudicial or embarrassing amended defences filed without opposition - Whether prejudice or embarrassment established - Amendment - Application to revoke leave to amend.

Corporations Law. Application for leave to proceed against company in liquidation under s 500(2) of the Corporations Act.

Re Admissibility of documents - co-publisher - liability as

LESSOR AND LESSEE - option to renew - exercise of option by notice in writing - on the facts it was found that notice had not been given - exercise of option by posting notice - consideration whether posting notice is sufficient if not received or not received within available time for exercise - consideration of operation of s.170 Conveyancing Act 1919.

Claim for possession.

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

CRIMINAL LAW AND PROCEDURE - SENTENCE - MATTERS ARISING SUBSEQUENT TO SENTENCE - FAILURE TO ENLIVEN EXERCISE OF APPELLATE JURISDICTION - NO SPECIAL POINT OF PRINCIPLE - RECOMMENDATION TO EXECUTIVE AUTHORITIES TO CONSIDER MATTERS RAISED BY APPLICANT