Cases and authorities

EQUITY - Trusts and trustees - Creation by Court of powers of trustees - must be not only "expedient" but also related to management or administration of trust property - management of property distinguished from management generally - power will not be created if statutory power already sufficient - EQUITY - Trusts and trustees - application for orders "dissolving" trust and "removing" trustee - Court has no power to destroy trusts - action by beneficiaries sui juris and absolutely entitled required

TORRENS SYSTEM - INJUNCTION - interlocutory injunction - competing equities under the Torrens System - knowledge of negative pledge in earlier Company Charge was not a personal equity overcoming indefeasibility of subsequent registered mortgagee - interlocutory injunciton refused.

[COMMERCIAL LEASES] - Construction of tax indemnity clause in Commercial Lease - Whether the self assessment method introduced into the Income Tax Assessment Act 1936, in 1989, obliged the plaintiff to furnish a return designating certain amounts as revenue rather than capital - Whether plaintiff entitled to elect to have Termination Value reviewed and amended. [WORDS AND PHRASES] "does not accept".

INSURANCE [80] Motor vehicle insurance- Stolen- What covered. MAGISTRATES [128][194]- Reasons for decision- Must deal with critical issues- If not case will be remitted. WORDS & PHRASES- "Stolen".

PERSONAL INJURY - damages - credit based finding that plaintiff not malingerer may not be overturned - causation - finding as to causal link between fall and conversion disorder may be overturned

Appeal decision of Fair Trading Tribunal

CORPORATIONS - Directors' duties - exercise of powers - Directors of Girvan Australia included the only two directors of Maronis, a subsidiary of Girvan NZ which was 74% controlled by Girvan Australia, 26% by public through listing on NZ stock exchange - Directors caused Maronis to mortgage its principal asset to Nippon Credit to secure loan of A$15m to Girvan Australia - no cross-security or recorded arrangement for protection of Maronis - on the facts, the Directors of Maronis were liable for breach of duty - claims against other officers failed. Consideration of - Charterbridge and duty of directors - formalities relating to appointment of directors. Claims against solicitors who acted for Girvan Austrlaia and against Nippon Credit for alleged breaches of fiduciary duties to Maronis failed. Consideration of Res Judicata and Ashun Estoppel. Assessment of equitable compensation based on value of land when Nippon Credit took control.

Application for Security for Costs - Overlapping of issues in Summons and Cross Claim - Delay through period when plaintiff suffering financial difficulties - Application at time when plaintiff's financial circumstances improving.

MONEY - claim to recover loan made during relationship - TORTS - Assault - whether illness contributed to fear of imminent harm - TORTS - conversion - no evidence of vlaue - TORTS - damage to goods - court estimates value where evidence only of purchase price - DAMAGES - aggravated or exemplary damages - whether applicable in "break up" of relationship - not awarded

Reasons for Sentence - Murder - Home Invasion in circumstances of special aggravation - Accessory after the fact to murder - Incitment to pervert the course of justice - Whether worst case category - Whether warranting imprisonment for life

MENTAL HEALTH [8]- Management of property- Role of Protective Commissioner- Private Manager- Overriding power of Court.

EQUITY - Interlocutory injunction - contract to keep information confidential unless in "public domain" - whether information accessible on internet is in "public domain" - plaintiff's financial capacity to meet undertaking as to damages is relevant to balance of convenience

Contempt in the face of the Court

Criminal law - application for leave to appeal against conviction - knowingly importing a commercial quantity of cocaine - wrongful exclusion of evidence - relevance and admissibility of evidence - appeal dismissed.

Practice and procedure - hearing date fixed without reference to convenience of counsel - prior defaults in complying with Rules and directions - application to vacate fixture on basis of unavailability of counsel - relevant considerations - application refused

Sentence - manslaugter unlawful and dangerous act - repeated discharge of loaded firearm

Corporations Law - declaratory proceedings by insured against joint insurers - appointment of provisional liquidators to one of insurers - insurers in the same interest - proceedings fixed for hearing - principles and considerations affecting discretion under under s471B Corporations Law.

Appeal from Local Court - psychological distress for breach of contract - failure to supply horse and carriage for wedding

NEGLIGENCE - Action against council and lifesaving club for injury caused by surfboard rider - Vicarious liability of council and club for actions of lifeguards - Whether the facts show there was a breach of duty - Whether a reasonable person in the position of a lifeguard would have taken steps to guard against a foreseeable risk of injury - Facts did not disclose a foreseeable risk of injury - Negligence not proved on balance of probabilities - No negligence of lifeguards or vicarious liability of council or club. - APPEAL - Interference with trial judge's findings of fact - Findings and inferences not based on evidence. ND

PROCEDURE — Evidence — Legal professional privilege — Applicability to liquidator’s funding agreement — Sections 118 and 119 of Evidence Act.

Family Provision. Application by nephew who worked for many years on deceased's property. - Order made. No matter of principle.

Appeal decision of Local Court Magistrate

PARTNERSHIP - dissolution - written agreement for dissolution provided for split advertisement in priority position in Yellow Pages to which the old partnership was entitled under practices of publisher - agreement "Subject to Yellow Pages approval" split advertisement published in 2000 YP and publisher's approval withheld for 2001 YP - on the construction of the dissolution agreement, the majority were entitled to the priority and the minority were not entitled to share in the absence of publisher's approval - decision on terms of dissolution agreement.

CORPORATIONS — Compulsory Examination under s596B of the Corporations Law — Pursuit of forensic advantage — Abuse of process — No peripherality of information sought — Examinations permitted.

Strike out paras of statement of claim - security for costs

CRIMINAL LAW - appeal - leave to appeal against conviction - accessory after the fact - assault with intent to rob with an offensive weapon - failure to direct jury as to possible defence of claim of right - motive to lie - R4 Criminal Appeal Rules - no miscarriage of justice

CRIMINAL LAW - appeals - appeal against conviction - murder - directions to jury - discretion to exclude evidence - whether summing up unbalanced - whether necessary to give instructions on alternative verdict of manslaughter - criminal responsibility - distinction between common purpose and joint criminal enterprise - whether principal in second degree - whether mere presence enough to be guilty of murder - miscarriage of justice

Criminal law - appeal against conviction - seven counts - appellant acquitted on all but one - complainant's evidence on various of the counts on which acquittals occurred contradicted by independent evidence - finding of guilt on count where complainant and appellant only gave evidence - appellant denied complainant's account - effect of evidence relevant to complainant's evidence on other counts - conviction unreasonable.

CRIMINAL LAW - appeal - appeal against conviction - murder - joint criminal enterprise - tape recording of evidence of poor quality - whether admission of tape and transcript into evidence constituted miscarriage of justice - whether new trial should be ordered - discretion of Court - whether verdict of acquittal should be entered for charge of murder or generally - whether new trial should be confined to charge of manslaughter

Criminal Law - appeal and new trial - miscarriage of justice - conduct of legal practitioners - incompetence of counsel - relevant principles

Stay of proceedings - alleged offences occurred 38 to 46 years before trial - applicant 74 years old in ill health - long and short term memory problems - whether relevant if normal - directions not capable of ensuring fair trial - stay granted

WILLS PROBATE AND ADMINISTRATION - Probate - Non contentious proceedings - Practice - Role of Registrar - Decisions not receivable ND

JUDGMENTS - Amending varying or setting aside - Where fraud - Action to set aside dismissed - Leave to appeal sought

Tort - Damages - where plaintiff suffered injuries in two separate accidents - distribution of damages against each defendant - assessment of damages - appeal SRA v Farrelly allowed - appeal Pells v Farrelly dismissed - cross appeal Farrelly v SRA allowed.

CORPORATIONS LAW - statutory demand - appeal from Master

Subpoena - Objection to production of documents - Test - Run-of-the mill cases - Routine documents - Public interest immunity - Practice - Procedure - Inspection of documents by judge

COURTS and JUDGES - Cross-vesting legislation - invalidity and Wakim - orders of Family Court for enforcement of agreement by H with W that H would grant a mortgage to a company controlled by W to secure a loan owed by H & W to the company were made in purported exercise of State jurisdiction - other orders of Family Court in exercise of Federal Jurisdiction required H to indemnify W against the loan - in an application under Federal Courts (State Jurisdiction) Act 1999 (NSW) the Supreme Court enforced the orders which the Family Court had purportedly made in exercise of State jurisdiction.

PROCEDURE [692]- Contempt- Issue of criminal summonses to witnesses before Supreme Court- Allegation that witness perverted the course of justice.

Personal Injury - Motor Accidents Act - quantum - whether damages excessive - whether ultimate findings were well based - whether pre-existing condition deteriorated as a result of accident injuries.

PROCEDURE - appeal from Medical Tribunal - appeal on a point of law - failure to reveal reasoning with regard to a critical issue constituted an error of law - MEDICAL PRACTICE ACT 1992 - excessive dosage of Kapanol - unsatisfactory professional conduct - quality of the error in misprescription - whether Tribunal entitled to take character into account - REMEDIES - Medical Practice Act 1992 - whether the making of no order is within the Court's discretion - D

Workers Compensation - compensation sought for schizophrenia caused by stressful events in the workplace - whether employment substantial contributing factor to injury - meaning of 'substantial' in Workers Compensation Act (1987), s9A - whether worker suffered an 'injury' - whether acts arising out of or in the course of employment - appeal dismissed.

ESTOPPEL [43]- Propietary estoppel- Scope- Effect of "entire contract" clause. EVIDENCE [72]- Privilege- Claim for legal professional privilege- No adverse inference to be made just because privilege claimed.

PRACTICE [115]- Masters- Parties must not treat hearing before Master as unimportant preliminary hearing- Master not referred to implications from documents tendered- Resulting order- Appeal allowed but appellant to bear costs.

CONTEMPT OF COURT - declaration that defendant is guilty of contempt of court sought - order sought that defendant be punished or otherwise dealt with for contempt of court - abuse and threats to legal adviser may constitute a contempt - whether acts done or words spoken can be considered an interference with the course of justice - Pt 55 r 11 SCR - standard of beyond reasonable doubt