Cases and authorities

Arrest - s33B Crimes Act 1900 - resisting arrest - lawful arrest - police - forcible entry into private home - "proper announcement" - lawful reason for entry without permission - whether circumstances amounted to implicit expression of intent to arrest - Crown appeal under s5F(2) Criminal Appeal Act 1912 - appeal dismissed.

Corporations Law - s1002G - insider trading - legislative history of Division 2A of the Corporations Law - when is material "readily observable" - whether a judgment read in open court constitutes "readily observable" information - whether information must be available in Australia before it is "readily observable" - appeal upheld. D

Application for leave to appeal - assignment of patent - misrepresentation - misleading or deceptive conduct - alleged interference with a Court exhibit - application dismissed.

TORT - Personal Injury - appeal against liability - respondent injured when she tripped over a dog whilst carrying a box in the course of her employment with the appellant supermarket - failure to warn or instruct of dangers - failure to tether/chain dog - lack of evidence - the dog was known to wander in the area and respondent was aware of this - appellant entitled to have regard to the fact that prudent employees take reasonable care for their own safety - lack of evidence that carrying box obscured her vison to the extent that she could not see the dog move - negligence not established - appeal upheld. ND

CORPORATIONS [319]- Winding up- Examination of non-directors- Oppression- Mere inconvenience insufficient.

CRIMINAL LAW - manslaughter - self-defence - whether the occasion for self-defence had ceased. - CRIMINAL LAW - self-defence - whether reasonable grounds for belief that the act was necessary. - CRIMINAL LAW - self-defence - Home Invasion (Occupants Protection) Act 1998 - whether Act declared and clarified the common law - whether Act extended the rights of an occupier at common law - D

Statutory construction - meaning of 'authority' for the purposes of s161A(4) of the Liquor Act - meaning of 'final determination' in that section

APPEAL - decision based in part on adoption of referee's report - no question of principle

NEGLIGENCE - Motorcycle accident - Contributory negligence - Apportionment of damage - DAMAGES - Measure of damages - Future economic loss - lost earning capacity - NEGLIGENCE - Damages - Causation - whether injury caused by collision or by later incident - COSTS - Indemnity costs - whether should be ordered - weight to be given to Calderbank offer - INTEREST - Claim under Motor Accidents Act 1988 - whether award of interest available - s 73. ND

LIMITATION OF ACTIONS - Application of statute - When time begins and ceases to run - respondent brought action against appellant solicitor for professional negligence in failing to commence action within time - meaning of a "day" - when one day ends and another day begins - Limitation Act 1969 ss 14(1), 63(1) - Interpretation Act 1987 s 36(1)

Defamation - imputations said to arise from statements made by the defendant in debate when a development application of the plaintiffs was being considered by Council - whether claim and cross-claim should be heard before the one jury in a trial pursuant to section 7A of the Defamation Act 1974 (NSW)

EQUITY - Equitable interests - competition of priorities between mortgage on RPAct form, unstamped, unregistered, undated, incomplete, incorrect in statement of amount lent, held by director of borrower who regarded herself as holding it for the lender but whose counsel told the Receiver before he accepted appointment that the assets were unencumbered, and the Receiver's lien for idemnity for expenses, remuneration and liabilities incurred in receivership to which he consented to be appointed by the Court - held that the unregistered mortgage was a mere equity and did not compete with the Receiver's equitable interest - alternatively the Receiver's claim was the better equity.

REAL PROPERTY - Caveat against dealing - Application ex parte to extend - All interested parties not served - Not appropriate to dispense with service - Order allowing replacement caveat

PROCEDURE [103] - SUPREME COURT RULES concerning offer of compromise - plaintiff makes offer of compromise - withdraws offer after new evidence produced - no prior leave to withdraw obtained - defendants accept offer claiming withdrawal is invalid - plaintiff seeks leave to withdraw offer nunc pro tunc prior to the entry of judgment - whether leave to withdraw offer of compromise can be granted nunc pro tunc - SUPREME COURT RULES Pt.22 r.3

PROCEDURE [113] - Judgments and orders - Interlocutory orders - Application to strike out statement of claim as showing no reasonable cause of action refused - Second application to strike out statement of claim or dismiss proceedings on ground no reasonable cause of action shown - General principle that second interlocutory application may not be maintained unless circumstances have changed.

[NEGLIGENCE] - Duty of care of a designer/manufacturer. [DAMAGES] - Cross Claim against the designer not a party to the main proceedings where the main proceedings settled and consent judgment entered- Cross Defendant did not file appearance - Claim for contribution in respect of liability in the main proceedings. [COSTS] - Whether Cross Claimant can claim from Cross Defendant costs incurred in defending plaintiff's case against it.

Criminal law - appeal against sentence - supply of prohibited drug - weight of plea of guilty - escalating culpability - whether procured by police - necessity to evaluate role - whether circumstance of aggravation or mitigation - sentence excessive - special circumstances established - applicant re-sentenced.

SENTENCE - aggravated sexual assault - whether sentencing miscarried - whether sentence excessive - relevance of prior relationship between complainant and offender. D

Practice and procedure - Court of Appeal - hearing date fixed - consent order to vacate refused - practice to be followed if application to vacate hearing date (D)

CORPORATIONS - Winding up - Contract by provisional liquidator not to be performed within three months - Principles on which Court will give approval for such contract

Practice & procedure - security for costs - plaintiff unable to meet order for security - whether plaintiff's impecuniosity result of defendant's conduct - capacity to meet order by persons gaining from plaintiff's success - delay in application - whether order should be limited to future costs.

Family Provision. Applications by three adult daughters. Two of them had not seen the testator since 1944. Question of whether in the circumstances the contact was sufficient to justify an order in their favour. - Consideration of whether the daughters had rejected the relationship with their mother. - Orders made in favour of the daughters.

EQUITY [350] - Equitable remedies - Injunctions - Injunctions for particular purposes - To restrain breach of contract - Negative stipulations - Contract of type of which specific performance not granted - Impossibility of supervision by Court - Contract requiring continuous supervision - Distribution agreement - Whether degree of supervision required such as to preclude interlocutory injunction.

Practice & procedure - report of referees - second reference - application for leave to adduce fresh evidence before judgment - principles applicable - application for leave to amend.

Pratice & Procedure - application to stike out contentions - Pt 13 r5 and Pt 15 r 26 - onus of proof in reliance damages.

Separate determination of issues - liability - causation - professional negligence - drafting of sublease

CORPORATIONS - Winding up - Winding up order obtained ex parte - Application to terminate winding up - Whether sole director and shareholder may apply under Pt 40 r 9 of Supreme Court Rules - Matters to be considered upon application undere s.482 of Corporations Law

CRIMINAL LAW AND PROCEDURE - Interlocutory judgment or order - What is - Leave to appeal against - When granted - Criminal Appeal Act 1912 s.5F(3) - ND

CORPORATIONS - Winding up - Contract by provisional liquidator not to be performed within three months - Principles on which Court will give approval for such contract

CORPORATIONS - Voluntary administration - Extension of time for execution of deed of company arrangement - Principles to be applied

EQUITY - Mareva orders - Whether assets in danger of dissipation - Meaning of "out of the jurisdiction" in modern Australia

Question submitted by Director of Public Prosecutions pursuant to s5A(2) Criminal Appeal Act 1912 - does obtaining and transporting ingredients and implements constitute taking a step in the process of manufacture of prohibited drugs

Criminal Law - fresh evidence - grounds to set aside convictions - identification evidence - risk of miscarriage of justice - new trial.

SUCCESSION [58]- Dependent relative revocation- Assumption of future fact- Assumption becomes invalid- Whether revocation of part of earlier will revoked conditionally on basis of continuing truth of assumption.

CORPORATIONS - Winding up - Special resolution to wind up - Whether such resolution may be passed by sole shareholder signing minute - Whether fact that no directors in office and no one willing to be appointed justifies winding up on just and equitable ground - Basis on which provisional liquidator will be appointed

CRIMINAL LAW - appeals - appeal against sentence - malicious damage by fire - malicious damage - whether insufficient weight given to applicant’s background - whether insufficient weight given to plea of guilty - whether sentence outside range - whether sentence manifestly excessive

PROFESSIONS AND TRADES - Lawyers - Negligence - Settlement of wife' s property in Family Law Act proceedings - Assets of husband not disclosed - Claim by wife against her solicitor for not making proper enquiries - Proof that husband had certain assets, and had not accounted for others - Whether husband's failure to account sufficient basis to award damages - Onus of proof. D.

CRIMINAL LAW - appeal - appeal against sentence - aid and abet armed robbery - leniency of sentence - whether sufficient weight given to objective circumstances - whether reasonable proportionality between weight given to objective gravity of crime and subjective circumstances - error of law

TITLE TO LAND - Title to part of public park claimed by adverse possession - whether "land of the Crown" - whether "dedicated under ... any ... Act" - whether Torrens title land reverting to Crown ownership before 1980 has "registered proprietor" - cumulative possession by several persons - whether owner consented to possession.

Whether defendants' statements should be provided to plaintiffs

Lease between plaintiff and defendant - plaintiff claims that defendant is liable for loss and damage arising from the flooding of the building due to valve requiring replacement - also defendant liable for claims brought against plaintiff by other tenants who suffered water damage - defendant claims that plaintiff had obligation to prevent flooding from spreading and damaging other parts of the building.

CORPORATIONS LAW — Scheme of Arrangement for co-operative — Role of expert — Compatibility and harmony with Corporations Law principles — Application to circumstances of members some of whom have no vote — Fairness principles and Gambotto where plebiscite employed — Share and creditors’ scheme — Need to differentiate — Analogies drawn from Corporations Law principles — No reduction of capital in co-operative under statutory regime applicable — Power to amend scheme after approval — Clause re no prescribed occurrences by analogy to takeover — Disclosure issues — Recording what occurs at pre-voting meetings and help-line — Need for impartiality and for documents to speak for themselves.

CHURCHES [10]- Proceedings to enforce church trusts- Whether security for costs should be ordered. PROCEDURE [665]- Security for costs- Church case- Those behind Bishop supporting his claim ought to provide guarantee for costs as if case relator suit.

Criminal law - appeal against sentence - drug offence - prior good character - same sentence as passed on co-offenders - asserted entitlement to disparity because of difference in previous character - previous good character particularly relevant to prospects of rehabilitation - particular impact on non-parole period - appeal upheld but only to reduce non-parole period.

sentencing - whether manifestly excessive - consideration of guideline (R v Henry (1999) 46 NSWLR 346) - judicial discretion in sentencing - relevance of psychiatric condition to sentencing process.

CRIMINAL LAW - Appeal against sentence - Serious drug offence by repeat offender - Early plea of guilty - Utilitarian discount - Application to Commonwealth offence - Relevant considerations - Whether 10% discount appropriate - Whether appropriate to increase non parole period for repeat offence, when this already taken into account in setting head sentence.