Cases and authorities

Local authority - misstatements to prospective purchaser concerning development potential of land - negligence - misleading and deceptive conduct - damages - D

Corporations Law - oppression - exclusion from day to day management - "legitimate expectation" - Corporations Law, s260 - Corporations Law - oppression - remedies - Corporations Law - directors’ duties - need for "fully informed consent" to absolve a breach of fiduciary duty

Accident between a motor vehicle and a horse and rider - Inference with Judge's findings of fact - Evidence - Conflict between police officer attending scene and expert's report.

Guarantee - appointment of receiver and manager by secured creditor - debtor's principal asset subject to hire purchaser agreement in favour of another party - principal asset seized by assignee from hire purchaser company - debtor's business terminated - secured creditor's enforcement of guarantee against surety - conduct of receiver and secured creditor - cross-claim by surety for damages and/or equitable compensation - D

Family Provision - Claims by de facto widow and infant son - Proceedings instituted after expiry of prescribed period - Extension of time - Distribution of assets before institution of proceedings - Prescribed transaction - Notional estate - Contributions by de facto spouse during relationship with Deceased - Financial and material circumstances of Plaintiffs - Health problems of adult Plaintiff - Education of infant Plaintiff - Competing claims of beneficiaries

CORPORATIONS — Statutory Demand — Progress payment to architect capable of giving rise to a presently owing liquidated debt under the relevant contract — No genuine dispute — Whether need for further substantiation in verifying affidavit of basis for time charging — allowing appeal ground not previously argued — Alleged defects in affidavit verifying statutory demand under s459E falls to be considered by reference to substantial injustice — None here — Wider discretion to set aside statutory demand if it exists not to be exercised in circumstances.

Constructive trust - Fraudulent misappropriation - Held, fraudulently misappropriated monies were impressed with a constructive trust in favour of true owner of the monies - Breach of trust - knowing assistance in breach of trust - Held, monies received from wrongdoer by defendants in circumstances indicating breach of trust were held by defendants upon a constructive trust for the true owner of the monies.

APPLICATION - Plaintiff seeking Order under Pt27 r1A Supreme Court Rules - overseas witnesses - alternative of video link

CORPORATIONS LAW - statutory demand - whether claim for indemnity sum under contract of reinsurance a claim for debt - CONTRACTS - contract for reinsurance - claim for breach - whether claim for liquidated or unliquidated sum - INSURANCE - reinsurance - contract for reinsurance - breach - whether creates debt - INSURANCE - reinsurance - whether failure to provide inspection under contract gave rise to genuine dispute

PROCEDURE — Striking out inadequately pleaded defence where basis of possible claim apparent from affidavit in possession proceedings should have been accompanied by reasonable stay of possession orders to permit adequately pleaded defence — That factor gave rise to the special circumstances operating as exception to Anshun estoppel when defences which could have been raised in proper pleading the basis for claims against estate.

CONVEYANCING - vendor and purchaser - breach of contract - purchaser required to pay balance of deposit on grant of development - approval - time essential - termination for non-payment - whether termination valid - EQUITY - relief against forfeiture after termination for failure to pay deposit - no evidence of reason for default - relief not given

DEFAMATION - Argument re capacity of imputations

Practice & procedure - interlocutory injunction pending appeal - whether question of construction seriously arguable on appeal.

Family Provision. Claim by only adult child of deceased. Order for legacy. No matter of principle.

CRIMINAL LAW - appeals - appeal against sentence - armed robbery in company - severity of sentence - delay in sentence - subjective circumstances - applicant at the crossroads - rehabilitation since sentence

Sentencing - conspiracy to defraud in commercial transactions by falsifying commonly used identification and supporting documents - deterrence - parity - significant differences in positions of co-offenders

CRIMINAL LAW - appeal - appeal against sentence - supply of prohibited drug - failure to take into account subjective circumstances of the applicant

Civil Practice and Procedure - District Court - Case Management - Refusal to grant adjournment of hearing of liquidated claim - Whether matter should have been removed from running list and adjourned - Whether integrity and efficiency of list would have been prejudiced by adjournment - Where party that opposed adjournment would not have been prejudiced by adjournment in manner incapable of remedy by costs order - Where party that sought adjournment was prejudiced by its refusal - Where Amended Statement of Claim had raised new cause of action based on s 592 of the Corporations Law - Where first defendant was interstate and lost opportunity to prosecute defence - Where none of the parties were ready for trial . ND

Tort - negligence - road accident - whether public road - failure to erect warning sign - assessment of contributory negligence - defence of 'joint illegal activity' - appeal CA 40942/99 dismissed - appeal CA 40888/99 allowed - cross appeal dismissed.

APPEAL - successful appeal - restitution

DISCHARGE OF STAY OF EXECUTION - appeal in which stay granted discontinued - no extant proceedings to overcome order at first instance, or to challenge basis of discontinuance - stay discharged. ND

LANDLORD and TENANT - term of lease - "break" clause for demolition - on the construction of the "break" clause in cl.11 it was held that the landlord's right to terminate on six months' notice to carry out demolition depended on earlier provisions and was only activated by accidental damage by fire, lightning etc. - decision on construction of this lease, not involving general principles.

Summary judgment - breaches of TPA - conspiracy

Option to purchase lot in unregistered strata plan - whether option holder has caveatable interest in site

STATUTES - Interpretation. Extent of exclusive jurisdiction of the Dust Diseases Tribunal in respect of cross claims for contribution between joint tortfeasors under the Dust Diseases Tribunal Act 1989.

Easements - creation by order of the Court - owner of land to be burdened unascertainable - what is "reasonably necessary" to use or development of land to have benefit - Conveyancing Act 1919, s.88K.

Stated case - No power to state case - Apprehended Violence Order - No power to extend after expiry - Inappropriate form - Powers on appeal

Soliciting a person to inflict grievous bodily harm on another person - Appeal against sentence - Principles applicable to interferring with sentencing discretion - Effect of mental abnormality on sentence - Late plea of guilty - Monetary motivation - Personal deterence

Applications for leave to appeal - little change of success if leave granted - cases not suitable for leave - applications dismissed with costs

Workers Compensation - Legal Costs - Costs Assessment - Costs of costs assessor - Power of Compensation Court (when hearing appeals from costs assessors) to order costs against a worker whose application for compensation was not "frivolous or vexatious, fraudulent or made without proper justification" - Whether such a worker can be ordered to pay costs of costs assessor - Test case - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18. - Statutes - Statutory Interpretation - Operation and effect - Interaction of sections of different Acts - Examination of legislative history - Legal Profession Act 1987 (NSW), s 202(1), s 206(1), s 208(2), s 208F, s 208M - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 112(3) - Compensation Court Act 1984 (NSW), s 18. - Legal Costs - Issue of which party to pay costs of appeal in the nature of a "test case" - Where test case was of general importance to appellant company’s insurer and to other insurers but not to worker.

TORTS - causation - liability - contributory negligence - PROCEDURE - discretion of trial judge - findings of fact open on the evidence - ND

NEGLIGENCE - occupier - whether in breach of duty of care to entrant - entrant took short cut from car park down grassed bank to building - obvious and convenient pathways available - insignificant additional travel - no breach. RESTITUTION - defendant paid successful plaintiff - appeal then upheld - entitled to repayment - and interest. D

Workers compensation - Alternate rights against occupier and employer - Employees and servants of the Crown

Retirement Villages Act 1989 - Retirement Villages Act 1999 - whether Retirement Village Industry Code of Practice applied - definition of "retirement village" - definition of "administering authority" of retirement village - whether Act precludes Supreme Court’s jurisdiction - whether owner precluded from terminating licence agreements - application of new Act to retirement villages established before its commencement - Appeal allowed. ND.

CRIMINAL LAW - forfeiture of property - Proceeds of Crime Act 1987 (Cth), s 48 - power of Court to exclude existing interest from forfeiture does not authorise the creation of a new interest for that purpose

Victims compensation - error of law on face of record - aggravation of existing condition - whether injury "as a direct result" of act of violence - limited powers of District Court when Tribunal determination set aside. (D)

Defamation - Tort of Injurious Falsehood - Defamatory matter in broadcast and speech - Whether Plaintiffs' extrinsic facts manifestly incorrect

Defamation - Interlocutory Judgment - Publication of Book

Evidence Act (1995) - Evidence - Admissibility - Opinion evidence - Expert opinion - Section 79 - Specialised knowledge - Whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience

NEGLIGENCE - pedestrian struck by motor vehicle - liability of driver - liability of highway authorities - misfeasance/non-feasance rule - contributory negligence of 9 year old pedestrian - CONTRIBUTION BETWEEN TORTFEASORS - damages against one tortfeasor capped by Motor Accidents Act 1988 - damages against other defendants uncapped - how contributions apportioned.

Consumer Claims Tribunal - nature of jurisdiction - duty of referee to conciliate - refusal of adjournment - whether breach of natural justice - prior determination quashed by Supreme Court - whether Tribunal functus officio - whether fresh Tribunal can determine original claim - when claim form is lodged - removed to add particulars and returned - does not affect date of lodgment - amendments to claim made out of time - whether permissible - whether formal order making amendments is necessary

PROCEDURE [115]- Masters- Appeal- Valuation judgment- When appeal allowed. VALUATION [25]-Shares- Capitalization of maintainable profits- When appropriate method. VALUATION [36]- Appeal- Valuation by Master- When appeal against valuation by Master should succeed.

Severity of sentence - Embezzlement - Special circumstances

Judgment for defendant and plaintiff ordered to pay costs - plaintiff appealed - costs assessed and separate judgment for amount of costs - bankruptcy proceedings brought - plaintiff applies for stay of execution on costs - appeal arguable but not strong - on evidence, able to pay costs and would recover them if appeal succeeded - also on evidence, bankruptcy would not bring end to appeal because plaintiff's husband able to and would fund appeal - stay refused. ND

NEGLIGENCE - No point of principle - Plaintiff injured when falls on stairs - Whether trial judge's findings as to how accident happened, breach of duty, and causation, sould be overturned. ND

STAY OF PROCEEDINGS - whether what was said as to one ground operated as a res judicata for another ground - on facts, did not do so. ND

Notice of Motion - second respondent seeking strike out of appeal as against him - where second respondent not a party at trial - where no finding of liability or quantum against second respondent - application granted.

Appeal against severity of sentence - Sexual intercourse without consent - Minors - Alcohol abuse

PROCEDURE [316] - Inferior Courts - District Court - Removal into Supreme Court - Extent of Court's discretion - Difficult questions of law - Considerations on which discretion exercised.