Cases and authorities

Possession by mortgagee - Consent judgment for possession - Offer to pay out mortgagee - Stay - Failure to honour pay out arrangement - Refusal of continuation of stay

NUISANCE - What constitutes - Blocking of drainage pipe - Water leaking from pipe - REAL PROPERTY - Easements - Drainage pipe through land - Obligations of dominant and servient owners.

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

FAMILY LAW [105]- De facto relationship- Parties co-habiting at weekends- No sharing of expenses- Woman prepares meals and does washing- Relationship not established. SUCCESSION [335]- Procedure- It is appropriate to decide summarily whether there is a sufficient prima facie case as to whether deceased was in a de facto relationship to warrant case going to trial.

Criminal Law - application to appeal against sentence - escape from lawful custody - application dismissed.

Negligence - non-delegable duty of care - school authority's duty of care towards school children - whether non-delegable duty of care covers intentional tortious conduct - sexual assaults by school teacher on children under his care - scope of non-delegable duty - Commonwealth of Australia v Introvigne (1982) 150 CLR 258.

INDUSTRIAL ACCIDENTS - Motor Accidents Act - mere use of cherrypicker to enable electricians to gain access to power lines does not attract cover provided for under compulsory motor accidents policy

PROCEDURE [24] - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - In general - Concurrent proceedings in Supreme Court and Family Court - Problems created by partial invalidity of cross-vesting legislation.

CONTRACT - Previous Court of Appeal finding that "web" of agreements of no force or effect - Whether an agreement executed subsequently purporting to replace one of the agreements in the web renders other agreements enforceable. - ESTOPPEL - Whether plaintiffs estopped by reason of demands on defendant to provide services under the Agreements and defendants providing those services. - RESTITUTION - Nature of determination - Fair and just remuneration - Whether application of fee stipulated in unenforceable agreements is just - Whether other methods of assessment applicable.

Corporations - voluntary administration - extension of time for second meeting of creditors - applicable principles discussed - extension granted

Proceedings arise from events relating to the establishment of a restaurant - operation stalled for want of finance - became possible for defendants to obtain an interest in head lease of restaurant premises - necessary to obtain investors for completion of building.

Judgment on application for verdict by direction - negligence action - whether plaintiff precluded from putting a case in negligence to jury - whether evidence of breach of duty - whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff's injury - whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable - whether rule in Browne v Dunn has application - s 23(4), s 42(1) Factories, Shops & Industries Act 1962

CORPORATIONS [286] - Winding up - Liquidators - Rights and powers - In winding up by Court - Power to enter into agreement on company's behalf - Necessity for approval if performance of contract may extend beyond 3 months - Approval by Court - Basis on which discretion may be exercised - Relevant considerations.

Costs

CRIMINAL LAW - appeals - appeal against sentence - supply of drugs - error as to quantity supplied - s 25A Drug Misuse and Trafficking Act - whether sentence manifestly excessive

Criminal law - appeal - admissibility of evidence - oral admissions - caution - to be administered in language in which arrested person able to communicate with reasonable fluency - test is whether concepts sufficiently communicated so as to be understood - no error - evidence - whether relevant - incapable of rationally affecting matters in issue.

Criminal law - appeal against inadequate sentence - inadequacy having regard to short non-parole period and error in failing to specify special circumstances established - adjustment would amount to tinkering - appeal dismissed.

CRIMINAL LAW - Appeal and a new trial - unlawful violence - directions to jury - accused's failure to give evidence - silence of accused not to be treated as evidence of guilt - there are many unknown reasons why accused may choose not to testify - accomplice direction - where accomplice testifies in favour of defendant - trial judge's directions inappropriate - appeal upheld, new trial ordered.

PROCEDURE - no variation of orders - matter not raised during hearing - Supreme Court Rules, Part 40, Rule 9

BUILDING CONTROL AND TOWN PLANNING - development application - planning and zoning requirements - clause 9(3) Local Environment Plan - meaning of "consistency" - whether council properly formed the clause 9(3) opinion - Environmental Planning & Assessment Act 1979 s 90(1)(d) - unreasonableness - failure to seek external advice - decision not unreasonable. D

LIMITATIONS - extension of time - very long lapse of time - no prejudice to defendant (other than general prejudice) - fair trial possible - whether other factors could be taken into consideration when determining justice and reasonableness of extension - whether extension was just and reasonable - no error in exercise of discretion. D

Construction contract - reference of all issues under Pt 72 - report of referee - referee's findings of fact and law disputed - principles applicable - construction deed varied orally - waiver of common law and contractual limitations on oral variation of deed - deed varied to waive liquidated damages - repudiation of varied deed by principal - interference in certification - insistence on impossible standard of practical completion - no bona fide belief in that standard - rescinding for repudiation without recourse to termination provisions of deed - contractor entitled to quantum meruit - incidence of GST on judgment.

Admissibility of documents- business records - whether prepared or obtained "for the purpose of" or "in connection with" proceeding - discretion to reject evidence if admission "unfairly prejudicial".

CONTRACT - Duty of good faith. - LANDLORD AND TENANT - Covenants - Convenant to repair - Covenant to comply with notices - Covenant to pay rates and taxes "in respect of property", where property only part of property on whch rates and land tax levied. - LOCAL GOVERNMENT - Powers of councils - Order that work be done - Validity and effect.

Practice - Service out of jurisdiction - Whether service is authorised by the Rules of Court - Whether applicants are properly joined as defendants - Whether proceedings constitute an abuse of process - Proceedings instituted whilst Plaintiff was deregistered - Reinstatement of Plaintiff - Order for reinstatement cannot be challenged in present application - Whether proceedings are bound to fail - Proof of foreign law - Law of California - Statutes of limitation - Whether substantive or procedural - Application by Court of forum of procedural law of California - Whether Court is an inappropriate forum for trial of proceedings - Whether Court in the exercise of its discretion should decline jurisdiction.

Minister for Community Services seeking orders quashing certain determinations by a Magistrate in the Children's Court - Power of Children's Court to rescind, vary or suspend care orders - Whether power to suspend can be implied - Interim orders

CONTRACTS [136]- Rescission- Election not to rescind- Factors involved- Whether unequivocal election by conduct evinced.

Costs

Crown appeal - two sets of offences - sentences as to second set manifestly inadequate - matters to be taken into account on resentencing - respondent resentenced

APPEAL FROM MASTER - PROCEDURE - Supreme Court Rules Pt32A r2 - proceedings dismissed by Master as no special circumstances - whether discretion not to dismiss in absence of special circumstances

Voluntary assumption of risk considered : Paras 27 - 35 - otherwise no question of principle.

LOCAL COURT - Civil Claim - Appeal by way of stated case - term implied in contract - whether any evidentiary basis for it

CRIMINAL LAW - appeals - appeal against sentence - obtaining money by deception - sentence outside proper range - use of sentencing statistics - general deterrence

CRIMINAL LAW - appeals - appeal against sentence - robbery - worst category of offence - subjective circumstances - timely plea - whether sentence manifestly excessive

CRIMINAL APPEAL - fresh evidence - verdicts unsafe and unsatisfactory

Anti-suit injunction - breach of contract - whether proceedings instituted in the Industrial Commission during Supreme Court proceedings constituted an abuse of process - issue estoppel - s106 Industrial Relations Act 1996 - appeal dismissed. D

Practice - Pleadings - striking out - no reasonable cause of action - abuse of process.

NEGLIGENCE - industrial accident - trial Judge finds case not proved - COURTS & JUDGES - adequacy of reasons of trial Judge

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

PROCEDURE [106] - Practice under Supreme Court Rules - Interim preservation - Party seeking ex parte extension of caveat and injunction - Proposed defendant attends court on notice - Applicant decides not to proceed with application and announces he will withdraw and not file summons - Proposed defendant seeks costs - Whether applicant may be required by Court to file summons.

Admissibility of post-contract communications in relation to (a) a claim in equity and an estoppel defence, and (b) in aid of the construction of a clause in a Deed.

MENTAL HEALTH [8]- Protection of property- Motor car accident victim- Application by carer for payment of Griffiths v Kerkmeyer damages- Matters to be considered.

Personal injury - Negligence - Paraplegia - Contributory negligence - Assessment of damages - Most extreme case - Domestic care - Recreational needs

CRIMINAL LAW - trial by jury - indictment charging commission of sexual offences - whether counsel's conduct incompetent and, if so, whether miscarriage of justice. EVIDENCE OF COMPLAINT - failure to direct that such evidence may be unreliable - whether good reasons for judge declining to warn - consideration of warning required - Evidence Act, s 165.