Cases and authorities

REAL PROPERTY - easements Conveyancing Act 1919 s88K - whether easement should be imposed

Practice & Procedure - Application for leave to amend

Criminal Law and Procedure - backdate sentence - Appeal - refusal of appellate court to intervene notwithstanding error

Sentences - mental condition - effect on sentences - correct approach - sentences not excessive for robbery in company

Criminal Law - Practice and Procedure - sentencing discount for assistance to the authorities with sufficient special circumstances to reduce non-parole period - protection of offender's family

LAND TAX - assessment of land value - definition of land improvements includes retaining walls - methodology adopted for assessment of land value did not involve error of law - no deduction to be made for scarcity factor - PRACTICE AND PROCEDURE - costs - Land and Environment Court Act - Class 3 proceedings - practice direction on costs not binding

Contracts - Termination - Whether repudation wrongful - Quantum of damages - Practice and procedure - Bias - Fairness of trial - D

EQUITY [33] - General principles - Equitable charges and liens - Money expended or benefit conferred on property of another - Whether interest may be ordered on sum charged - EQUITY [171] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement - General principles - Executors’ expenses - PROCEDURE [565] - Costs - General rule - Costs out of a fund - When costs allowed out of fund - Benefit of estate - Defendant defending proceedings for own benefit rather than benefit of estate - PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct - SUCCESSION [254] - Executors and administrators - Title and estate of - Estate in land - Executors also devisees.

Practice & Procedure - application to strike out - embarrassing pleadings - want of particularity - statements of evidence in lieu of particulars.

Local court - Ambit of appeal from local court (civil) - Refusal of adjournment - Withdrawal of legal representative - Natural justice - Procedural fairness - Failure of party to comply with directions

Application for review of costs - assessment - whether giving notice is jurisdictional prerequisite - notice only relevant to costs of review

Sentence - murder - intent to kill youth under the prisoner's care - no premeditation

Negligence - duty of care - causation - personal injury - leased premises.

CORPORATIONS — Statutory derivative action — Requirement to bring such proceedings in the Company’s name does not mean that a statement of claim must actually make the company a plaintiff if otherwise inappropriate — In present case appropriate for representative action to be brought by one defendant against others — Satisfaction of conditions in s237(2) — No necessity for derivative actions and personal actions to arise out of the same transactions — here substantial factual overlap in any event — UK cases not followed having regard also to s63 of Supreme Court Act requiring all matters of controversy between the parties to be tried together so as to avoid multiplicity of proceedings — No impediment under Pt 8 r2 as statutory provision prevails.

Litigant in person - application for summary judgment - application for summary dismissal - security for costs.

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

PROCEDURE — Contempt — Court undertaking as price of ex parte injunction — no waiver — purging contempt.

Extension of time - ss 58, 60G & I - Q Fever

Real Property. Application for appointment of trustees under s 66G of the Conveyancing Act. - No matter of principle.

CONVEYANCING - land under the Torrens System - discharge of mortgage procured by fraud of mortgagor - property then sold - mortgage remaining registered - mortgagees lodged caveat before transfer lodged - whether mortgagees have priority over purchasers CONVEYANCING - land under the Torrens System - discharge of mortgage procured by fraud - land then sold - whether incoming purchaser entitled to protection of s43A CONVEYANCING - incoming purchasers buying as joint tenants - one joint tenant party to fraud in discharge of mortgage - whether other joint tenant "tainted" or can take title unencumbered CONVEYANCING - land under the Torrens Title System - transfer not stamped - whether incoming purchaser entitled to protection of s43A CONVEYANCING - land under the Torrens Title System - claim against Torrens Assurance Fund - s129(1) of Real Property Act 1900 - whether incoming purchaser suffered damage as a result of the operation of the Act through being deprived of an interest in land through fraud - if would have taken unencumbered title if land under Old System Title

COSTS - Offer of compromise - Calculation of minimum time for acceptance - Whether rule complied with - Relevance to discretion. D.

STAY OF PROCEEDINGS - respondent in need but risk that could not repay if appeal succeeded - part payment plus security for balance - no question of principle. ND

ADMINISTRATIVE LAW - Judicial review at common law - whether Court should refuse judicial review because Act makes adequate provision for alternative review - discretionary nature of jurisdiction - factors to be considered

Criminal Law - sentencing - murder - Criminal Law - sentencing - accessory before the fact of maliciously wounding with intent to do grievous bodily harm

DAMAGES - COMPENSATION TO RELATIVES - NERVOUS SHOCK - QUANTUM - NO PARTICULAR POINT OF PRINCIPLE

PROCEDURE - conferral of jurisdiction - indictable offences - related summary offences or 'back-up' charges - Part 10, Criminal Procedure Act 1986 - whether failure to produce certificate at committal deprives the trial court of jurisdiction to determine related summary offences and 'back-up' charges - PROCEDURE - right to a fair trial - exercise of judicial discretion - grant of permanent stay - whether lost opportunity and passage of time constitute a fundamental defect going to root of the trial - STATUTORY INTERPRETATION - object and purpose - construction of language - JURISDICTION - conferral of Local court jurisdiction to trial court - procedure for conferral of jurisdiction - whether handing up of a certificate detailing related summary offences and 'back-up' charges constitutes a procedural pre-condition for conferral of jurisdiction - CRIMINAL LAW - driving in a manner dangerous occasioning death/grievous bodily harm - Crimes Act 1900 - related summary offence of negligent driving - D

ASSOCIATIONS & CLUBS [1]- Amendment to rules- No provision for amendment- Unanimous consent of members required- Court has inherent power to overcome deadlock. ASSOCIATIONS & CLUBS [3]- Gifts- Church built by unincorporated association- Perpetuity- Invalid gift. CHARITY [6]- Advancement of religion- Trust for ethnic church school community- Whether valid. CHURCHES [7]- Trusts- How trusts discovered- On facts trust for hierarchical church with congregationalist overtones. EQUITY [108]- Trust- Involving unincorporated association- Difference between core terms of trust and precatory directions. EQUITY [255]- Rule against perpetual non-alienation effect on gift to operate church.

Sentencing for Manslaughter - Sentencing for robbery in circumstances of aggravation - Principle of totality - Accumulation and concurrent sentences - Special circumstances - Aboriginality

DAMAGES - action for damages for personal injury - assessment of damages - plaintiff brain damaged - provision for future care

ADMINISTRATIVE LAW - consent to development applications - requirement to "take into consideration" development control plan - Environmental Planning and Assessment Act 1979, s79C(1) - ADMINISTRATIVE LAW - appeal on question of law - Land and Environment Court Act 1979, s56A.

Equity - equitable contribution - recoupment - undue influence - rescission - mortgage and guarantee void ab initio - whether insurance company suffered loss on discharging mortgage - whether mortgagor suffered loss under void mortgage - whether solicitor and insurance company under co-ordinate liabilities to make good the one loss- whether solicitors liable in contribution . D.

Evidence - admissions - statutory obligation to answer questions - answers sought to be used in prosecution - use of admissions not unfair - s 87 of Independent Commission Against Corruption Act 1988 - s 90 of Evidence Act. D

Torts - Negligence - Duty of care - Mental or nervous shock - Man killed in horrific accident - Widow and children told - Claim for damages for mental injury - Whether mental or nervous shock - Whether Workers Compensation Act s.151P gives cause of action - Whether Law Reform (Miscellaneous Provisions) Act excludes common law liability - Whether children have common law claim. D.

Damages - appeal - workplace injury - whether trial judge erred in assessment - past economic loss - future economic loss - no error in award. (ND)

Criminal Law - sentencing - murder

EVIDENCE - Onus of proof - Issue on which party bearing onus was the only witness able to give direct evidence - Deliberate decision not to call party - Applicability of Jones v. Dunkel principle - EVIDENCE - Hearsay - Double hearsay admitted for different purpose - Whether Evidence Act s.60 excludes application of hearsay rule - DAMAGES - Loss of travel benefits - Whether damages equal to face value of travel benefits lost. D.

Practice and Procedure - Discovery - Production and inspection of documents - Notice to Produce - Relevance of documents to a fact in issue - Entitlement to document in preparation for cross examination of relevant witnesses

Share market manipulation - creating false or misleading appearance of active trading in securities

Appeal decision of RTT - extension of time - Duties of owner in respect of common property - Termination notices

COURTS and JUDGES - Cross-vesting - Proceedings relating to conversion of goods and goodwill of business in Coorparoo, Q. were transferred to SCQ

Criminal Law - Judicial instructions to jury - Right to silence of accused - Directions and comments by trial judge to jury on accused’s failure to give evidence at trial - Whether contravention of Evidence Act 1995 (NSW), s 20(2) - Where judge directed jury not to consider accused’s silence as sign of guilt - Where judge also commented that jury could consider silence of accused when weighing evidence of the Crown - Where accused stood trial for murder - Where accused did not give any evidence at trial - Evidence Act 1995 (NSW), s 20(2) - Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on manslaughter adequate - Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on self-defence adequate - Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on reliability of witnesses adequate - Criminal Law - Appeals - Appeals against conviction - Whether "no substantial miscarriage of justice" - Whether proviso applies under Criminal Appeal Act 1912 (NSW), s 6(1) - D

Practice and Procedure - Application for leave to amend - Leave to plead contractual obligations - Inappropriateness of pleading contractual obligations within particulars as a matter of form - Particulars cannot replace formal pleading of a material allegation of substance - Separation of pleadings and particulars

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

FAMILY PROVISION - former spouse - marriage in 1971, separation in 1988, divorce in 1989 - order of Family Court for property settlement adopted agreed Terms of Settlement in March 1990 and plaintiff received $150,000 - TS contained covenant to execute Deed of Release of Family Provision claims but neither side required Deed to be executed and no order under s.31 - H died 1998 and left estate $358,000 to distant cousins he had never met - plaintiff now lives in Aged Persons accommodation, Age Pension and savings $2000 and no other resources - no continuing relationship or contact after separation: HELD under s.9(1), no factors warranting application, proceedings dismissed.

Criminal Law - sentencing - importation of commercial quantity of cocaine.

Criminal law - appeal against conviction - leave to appeal against sentence - drug importation - life sentence - evidence of importation technique similar to previous yacht journeys with dinghy of specific design - appellant said to have asserted knowledge of previous journeys but not to have been involved in them - admissibility of evidence - utility of evidence - conduct of Crown Prosecutor - form of summing-up - separation of cases - evidence of accomplice - cross-examination on matter deliberately not revealed in police interview - no substance in grounds of appeal - no error in sentence.

WORKERS COMPENSATION - The Worker's Compensation Act 1987 - exercise of discretion imposed by s 40(1) - whether non injury factors can be taken into account when determining loss of earning capacity - ND

Negligence - collision on local authority land between uninsured & unregistered trail bikes - action against Nominal Defendant - "Public street" - delay - action out of time - significant prejudice - refusal of leave to commence proceedings.

Worker suffered 28% loss of hearing from boilermaker's deafness in left ear after suffering 100% hearing loss in right ear from an unrelated condition - whether he suffered binaural hearing loss as found or only monaural hearing loss