Cases and authorities

Criminal Law - sentencing - plea of guilty - whether discount at the bottom of the range erroneous - utilitarian value of plea of guilty not diminished by strength of Crown case

Criminal Law - sentencing - judicial notice of prevalence of crimes of a particular kind - otherwise, no question of principle

PRACTICE AND PROCEDURE - abuse of process - res judicata - defendant not party to earlier proceedings - plaintiffs seeking to re-litigate issue they lost in earlier proceedings against new defendant - action dismissed as abuse

Equity- Life tenant and remaindermen- Life tenant discharging mortgage- Remaindermen offering to reimburse capital plus applicable interest- Life tenant surviving 30 years after discharge of mortgage- Property increasing in value over those 30 years- Whether life tenant's estate entitled in equity to share of increase- Held "No". (D)

PROPERTY LAW - renewal of lease - whether option to renew exercised - whether an expression of an intention is binding - PROPERTY LAW - renewal of lease - service of notice of renewal - whether service on agent sufficient - COMPANY LAW - Partnership Act 1892 - whether had ostensible or implied authority - whether renewal of lease is business in the 'usual way' - D

LIMITATION - FRAUD EXCEPTION - NO QUESTION OF PRINCIPLE

Practice and procedure - limitation periods - power to extend limitation period under s151D of the Workers Compensation Act 1987 - standard of review of such a decision

Fa,mily Provision. - Small estate left to neighbour. - No evidence of widow's needs. - Order for provision made. - No matter of principle.

CORPORATIONS [196]- Receiver- Discharge- Insolvent company- Order for discharge conditional on insolvent company being deregistered. CORPORATIONS [204]- Winding up by court- Who may apply- Application by receiver possible.

Criminal law - indictment charging four sexual offences - complainant's evidence uncorroborated - jury acquitted on two of the offences charged - whether jury ought to have returned not guilty verdicts on remaining counts.

CRIMINAL LAW - Appeal against conviction - Prosecution submission concerning "lies" - Whether trial judge's directions adequate. - CRIMINAL LAW - Appeal against sentence - Credit given for period of incarceration - Whether non-parole period should be calculated before or after this credit is given. - EVIDENCE - Hearsay - Criminal trial - Depositions from committal proceedings - Whether admissible when witness not "unavailable" within meaning of Evidence Act. D.

Respondent assaulted in Port Moresby in the course of her employment with the appellant - breach of duty of care - liability and quantum

LOCAL GOVERNMENT - Shopping centre development - Landscaping plan - Involvement of Council - Tree with aggressive roots liable to damage footpath - Whether Council responsible - TORTS - Negligence - Plaintiff trips on damaged footpath - Whether Council liable. ND

No question of principle.

EQUITY [109]- Trusts- Investments made prior to trust deed being executed- On facts investments subject to trust. EQUITY [191]- Trusts- Director of corporate trustee defaulting in fiduciary duties- Director's company a beneficiary- Principle that a person entitled to a share must first make good a loss caused to the trust estate applied.

CORPORATIONS [212], [215] - Winding up - Grounds for winding up - Insolvency - Application to set aside demand - Genuine dispute as to indebtedness - Assessing genuineness - Test to be applied - Offsetting claims - Test applicable - Difficulty in calculating amount - Difficulty caused or contributed to by creditor.

Practice & Procedure - order for production of legal advice referred to in discovered documents in pre-trial procedure - claim of privilege - waiver - application of Pt 3.10 Division 1 Evidence Act 1995.

Family Provision. Application by a person who was living in a domestic relationship with the deceased. Discussion on the meaning of the expression "close personal relationship". - Held that the Family Provisions Act 1984, as amended by Property (Relationships) Amendment Act 1999, applies to estate of a testator dying before 28 June 1999 provided proceedings were commenced after that date.

WORKERS COMPENSATION - Appeals - Error of law - Denial of procedural fairness - Finding as to credibility - Whether stereotypes wrongly applied - Whether judge should have signalled need for interpreter. ND

MORTGAGES - deed of charge made to secure loan agreement between company and director - charge over assets of company - director issues demand - company defaults - mortgagee appoints receiver - whether demand validly issued - MORTGAGES - deed of charge - mortgagee purports to appoint "controller" - whether appointment valid - COMPANIES - director's duties - director also a creditor with deed of charge over assets of company - director issues demand and appoints receiver - whether breach of director's duties - COMPANIES - receivership - director/creditor appoints "controller" under deed of charge - controller sells asset of company to company controlled by director - whether sale should be set aside

CORPORATIONS [177]- Administration- Validity of resolution appointing administrator questioned- Power of court to rectify and validate.

CRIMINAL LAW - Crown appeal against sentence - No error of principle shown. ND

COURTS AND JUDGES - District Court - Action for damages alleging professional negligence - Application for dismissal on grounds of want of prosecution - Application adjourned on application of plaintiff - Show cause notice given for adjourned day - No appearance of plaintiff on adjourned day - Action dismissed with costs - No formal reasons given - Whether error of law - Whether, if Court of Appeal called upon to exercise discretion, action should be dismissed. D

FAMILY LAW - De facto relationships - Property adjustment order - Application for - When permitted - Evidence on - Commencement and determination of relationship - Contributions - Contributions made prior to commencement of relationship D

CORPORATIONS - Winding up - Recovery of property by payment of money by creditors - Advantage to those creditors in consideration of risk assumed - Primary judge orders that 100% of recovered proeprty go to funding creditors - Object of statutory provision - Assessment of risk - Position of creditors not approached for funding - Whether grounds for disturbing exercise of discretion.

Family Provision. - Application by a child who had no contact with father for many years. - Small estate. - Adjustment to legacies and no order for plaintiff's costs.

CORPORATIONS — Statutory Demand — Representations relied upon to ground genuine dispute or offsetting claim — Available for former but not latter as damages amount not sufficiently ascertainable given obligation to mitigate loss so should be set at $1.

[SUMMARY JUDGMENT] - Application for summary judgment in respect of balance of Progress Claim withheld by agreement. [INTERLOCUTORY MANDATORY INJUNCTION] - Whether such should be granted where no undertaking as to damages proffered and a lack of capacity to reinstate guarantee. Plaintiff in liqudiation prior to calling upon guarantee.

CONVEYANCING - Matters arising between contract and conveyance - Purported termination by purchasers for breach by vendor - Purported termination relied upon by vendor as wrongful repudiation - Whether vendor can reecover unpaid balance of deposit after termination - Whether purchasers entitled to relief under s.55(2A) Conveyancing Act 1919 - CONVEYANCING - Formation of contract - Real estate salesperson purports to effect exchange of contracts - No authority of purchasers to do so - Purchasers present but not participating in supposed exchange - Salesperson delivers part signed by vendor to purchasers' solicitors - When exchange effected

[CONSPIRACY] - Application to strike out pleading alleging conspiracy to harm plaintiff by unlawful means - Whether conspiracy alleged is identical to agreement by which prohibited acquisition of shares is achieved. [LIABILITY TO ACCOUNT] - Whether pleading alleging conspirator's liability to account for co-conspirators' benefits should be struck out. [AIDING AND ABETTING BREACHES OF COMPANIES CODE] - Whether deeming provisions have the effect of making aider and abetter liable for loss.

SENTENCING - appeal against sentence - s 319 Crimes Act 1900 doing an act with the intent to pervert the course of justice - case where a custodal sentence was required

CRIMINAL LAW - Practice and procedure - Stay of proceedings - Crown appeal

LIMITATION PERIOD - When does time begin to run? - Limitation Act 1969 - action against solicitor for losses arising from statute barring of original damages claim - applicability of exception to general rule espoused by Deane J in Hawkins v Clayton (1988) 164 CLR 539. D

EVIDENCE [256] - Prohibition of publication of evidence - Power of court - Principle that administration of justice should be open - PROCEDURE [16] [31] - Courts and judges generally - Judges - Power to control proceedings - Miscellaneous powers - Power to grant access to representatives of press to affidavits which have been read into evidence - Proceedings in open court or in camera - Principle that administration of justice should be open

TORTS [35] & [42]- Negligence- Banks- Accountant- Whether Bank assumed a duty to pass on information- Whether Accountant failed to carry out his retainer- On facts claim fails.

Negligence - Solicitor and Client - Contract for the Sale of Land - Credibility of Witness - s149 Certificate - Warranties - right to Rescind Contract - Conveyancing (Vendor Disclosure and Warranty) Regulation 1986, cl 5

Limitation of Actions - Extension of period - Statutory requirements for - Personal injury case - Material facts of decisive character - Plaintiff's knowledge of relevant material facts - Limitation Act 1969, s 58(2)

CRIMINAL LAW - Sentence - verdicts of guilty of murder and manslaughter arising from the same incident

MORTGAGES - claim for possession on default and judgment for sums secured - defence and cross-claim under Contracts Review Act - real defence loans obtained for purposes not stated on application and not explained to be secured on home - mortgagor alleged payments to bank manager to secure loan - Contracts Review Act defences fail - unpleaded claim of wrongful payments made out but gave no reason to vary written documents - CONTRACTS - Contracts Review Act - contract not unjust when borrower understood basis for liability under a mortgage and had no concern about its terms - EQUITY - unconscionable dealing - no special disability in person obtaining money by means known to be improper

LANDLORD AND TENANT - holding over after fixed term lease - whether tenancy continued as monthly tenancy or whether lease for indefinite period created - found to be monthly tenancy - landlord entitled to terminate lease on appropriate notice - ESTOPPEL - lease terminated - lessee assumed that tenancy would continue until lessor undertook tender process for new lease - no detriment suffered - Commonwealth v Verwayen applied - no unconscionable conduct - MISLEADING AND DECEPTIVE CONDUCT - s 42 Fair Trading Act 1987 (NSW) - misrepresentation as to lessor’s intention to hold public tender for renewal of lease - whether the Crown, as lessor, carried on a business and whether representations were made in trade or commerce - held, Crown not carrying on a business, some representations made in trade or commerce - Ministerial press release not in trade or commerce - claim for loss of opportunity to become successful tenderer - claim not made out as no loss or damage suffered - CONTRACT - implied term to act reasonably and in good faith in exercise of legal rights - not needed to give business efficacy - no grounds for implication

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

Negligence - liability of local Council - plaintiff tripped on uneven kerb - whether an issue of nonfeasance arises\whether Council not liable by reason of a delegation of duty to an independent contractor - appropriate award of damages

District Court - motor vehicle accident - whether damages excessive - nature and extent of injuries occasioned by relevant accident - whether earning capacity impaired to extent found by trial Judge - no point of principle