Cases and authorities

CRIMINAL LAW - appeal - appeal against sentence - sexual assault - indecent assault of a child - applicant sentenced on facts not particularised - uncharged offences inappropriately taken into account - failure to give proper weight to pleas and confessions - failure to quantify discount

Criminal law - appeal - admissibility of handwriting samples - particulars of identification - statutory authority to require particulars in accused's handwriting when in custody - provision of handwriting sample not an admission - NSW Police Instructions not improper.

Claim for damages for assault - dismissed by trial judge - attack on trial judge's findings of fact - whether demonstrably wrong - held: no sufficient basis for interfering with judge - s conclusions based on his principal findings of primary fact

PERSONAL INJURY - workplace injury - double storey unit, no staircase, scaffolding or other means of access - STATUTORY DUTY - breach - Construction Safety Act 1912 - Construction Safety Regulations 1950 reg 73 - whether regulation applies to a head contractor - where preliminary work to be carried out by head contractor, head contractor liable - where a head contractor participates in faulty construction work it will be liable to independent contractors - whether a person is bound by the regulations will depend on whether a person is actually carrying out building work - breach of regulations found - voluntary assumption of risk and contributory negligence no answer to breach of statutory duty - CONTRACT - breach of implied duty - term implied by operation of law for employer to take reasonable care for employees safety - no facts to support express agreement overriding implied term - breach of implied term found - voluntary assumption of risk and contributory negligence do not apply to breach of contract - DAMAGES - quantum - whether psychiatric injury caused by accident - findings of trial judge on quantum upheld. D

WORKERS’ COMPENSATION - cost of medical or related treatment - housekeeping or domestic assistance - Workers Compensation Act 1987, s 59(f) - definition of "medical or related treatment" does not include housekeeping or domestic assistance

PROCEDURE - application for leave to appeal - issues of general importance - leave granted on such basis - issues not raised by appeal - CONTRACT LAW - documentary letters of credit - Uniform Customs and Practice of Documentary Letters of Credit - discrepancy within documents - EQUITY - restitution - ND

Sentence - manslaughter - drunken fight - discount for guilty plea

Appeal from local court - Application for leave to appeal - Refusal of adjournment application by a magistrate - Discretion - Principles on which discretion may be interfered with - Withdrawal from hearing by counsel - Non-appearance by solicitor - Entry of judgment following ex parte hearing - Application for extension of time in which to seek leave to appeal - Principles - Natural justice - Indemnity costs - when awarded

Practice & Procedure - leave to amend defence - alleged futility of amendment - amendment to allege unenforceability of agreement arising out of breach of s1002G Corporations Law

Family Provision. Claim by de facto wife. Plaintiff who had previously destroyed a will of the deceased and obtained a grant of administration. Grant set aside in earlier proceedings due to plaintiff's fraud. Whether time should be extended to allow the present claim. As the plaintiff's unconscionable conduct was the cause of the delay time should not be extended. - Landlord & Tenant. Claim for mesne profits. - Consideration of whether s 12 of the Landlord & Tenant Act 1899 was extended by virtue of Part 8 Rule 1 of the Supreme Court Rules. - Held it was not.

Cross claim - recovery proceedings - employer - manufacturer

Probate in common form granted on Will and two Codicils in 1998 - Validity of Codicil - Codicil signed by deceased but not by attesting witnesses.

CORPORATIONS — Company making payments for goods supplied — Factors going to establishing "good faith" defence under s588FG(2)(a) of Corporations Law in relation to preferential payments of a concededly insolvent company — Relevance of post-dated cheques and arrangements to not bank them without telephone confirmation — Subjective and objective alternative tests for suspicion of insolvency — Running account defence under s588FA(3) of the Corporations Law — Relevance of lack of good faith in subjective sense to continuance of business relationship required for defence — Other factors affecting — Defence made out — How unfair preference calculated where running account.

COSTS - Successful defendant ordered to pay plaintiffs' costs - Council sold plaintiffs' land without entitlement to do so - Law unclear as to whether purchaser obtained good title - Whether Council should bear costs of resolution of question.

CONTRACTS [7][17]- Whether a contract- Agreement between brothers to sell land- Whether intention to be bound other than in honour- Whether formal exchange contemplated. CONTRACTS [122]- Abandonment- What must be established. CONVEYANCING [67]- Trust- When does vendor become trustee for purchaser? EQUITY [119]- Statute of Frauds- Part performance- Acts must be unequivocal.

Family Provision. Application by sister in respect of an estate of $615,000 which substantially passed to the deceased's solicitor. Solicitor not a relative but had managed the deceased's affairs for six years before her death. Whether sister should have the fee simple or a Crisp order in respect of the deceased's home. In the circumstances fee simple appropriate.

CRIMINAL PRACTICE & PROCEDURE - Unfitness for trial due to mental illness - long running trial - whether issue raised in good faith - obligation to halt trial and resolve issue of unfitness

Robbery in company - Larceny - Receive stolen property - Adequacy of sentence - Parity of sentence - Rehabilitation - Assistance to police

DEFAMATION - identification - whether questions of identification are for the jury to consider - Defamation Act 1974, s7A(3) - DEFAMATION - perverse decisions - connection between conduct relied on in imputations and defamation - "incompetence"

Proceeds of crime - forfeiture - extension of waiting period - declaration under s 48 notwithstanding proposed appeal against extension

CONVEYANCING [76] - Relationship of vendor and purchaser - Breach of contract - Deposit - Recovery of deposit - Statutory power to order - Whether power may be exercised in respect of deposit not actually paid - Whether all claims in the proceedings must in all circumstances be determined before exercise of discretionary statutory power - Circumstances in which order made.

Order- the nature of certiorari - Supreme Court Act 1970, s 69 - Passenger Transport Act 1990, ss 11,12,14,52,53 - suspension and cancellation of authority - appeal to Local Court - allegation of indecency - no error in law - no denial of natural justice - no evidence of bias - summons dismissed.

Criminal law - sentence - appeal - proportion of non-parole period to total sentence

Sentencing - Deception and possession of counterfeit currency - mental element - inadequate findings of fact.

LOCAL GOVERNMENT - PROPERTY - Council purports to sell land in respect of which rates not overdue for more than five years - Whether conveyance validated.

Family Law - De Facto Relationship - Adjustment of interest of parties in property - Relationship for a period of five years - Respective contributions of de facto partners - Various property transactions - Company used as vehicle for those transactions - Equalisation of loan accounts in company - Purchase and sale of various motor vehicles - Conduct of Defendant in affecting transfer of registration of motor vehicle from Plaintiff to her company after the termination of the de facto relationship - Whether residence of parties during the relationship (in which Defendant has continued to reside) should now be sold, or whether one party should purchase the interest of the other party

Stay of proceedings - stay pending resort to contractual dispute resolution - whether contractual provision sufficiently certain. - Court ordered mediation - whether Court should order mediation over opposition of party - relevant considerations discussed.

Opinion evidence - Evidence Act 1995 ss 70, 80(a), 135 - evidence of fact in issue or an ultimate issue - admissibility of a question asked of an expert

CRIMINAL PRACTICE & PROCEDURE - Joint enterprise involving several counts - Effect of acquittal on some counts - Appropriate direction - Admissibility of evidence relating to counts in respect of which acquitted

CRIMINAL LAW - Judgment and Punishment - Costs - Certificate under Costs in Criminal Cases Act 1967 - Certificate can only be granted where the relevant offence was against State rather than Commonwealth law - Proceedings under Corporations (NSW) Act 1990 - s29(2) of the Corporations (NSW) Act provided that, for the purposes of a law of NSW, such an offence is to be taken as one against the laws of the Commonwealth and not of NSW - held that a costs certificate cannot be granted in relation to an offence under the Corporations (NSW) Act.

CORPORATIONS — Application to set aside statutory demand payments under painting subcontract — Whether capable of constituting debt presently due and owing when defects later claimed to be found — Offsetting claim can be unliquidated so long as genuine i.e. not dishonest or colourable — But cannot be an offsetting claim for more than nominal amount of $1 unless damage reasonably ascertainable — Scope for construing contract and considering undenied facts in concluding claim for liquidated damages spurious.

PROCEDURE - Interlocutory application - Direction that affidavits be served - Party tenders affidavit as an exhibit - Whether prior notification or service required.

Interpretation of restrictive covenant - Whether Jacuzzi is a swimming pool.

Trust. Resulting trust. Whether in the circumstances presumption rebutted by evidence of intention. Held it was rebutted. - Family Provision. Claim by de facto partner of 22 years. Question of whether a Crispt order is appropriate. Held not appropriate.

EQUITY [104] - Trusts and trustees generally - Classification of trusts in general - Secret trusts - Absolute bequest of whole estate to legatee - Secret trust imposed on legatee in favour of other persons - Whether testator’s expressed wish created only hope or expectation or was intended to create legally binding obligation.

CORPORATIONS — Failure by liquidator to ensure monies held back to pay group tax — Personal liability of liquidator for proportion after it became obvious re-financing not forthcoming — Conditional release of liquidator pursuant to s481(2) of Corporations Law subject to condition of making good that proportionate liability — No basis for granting relief under s1318 of Corporations Law.

Criminal law - sentence - appeal - no question of principle.

Criminal law - appeal against sentences - two counts supply commercial quantity of heroin and cocaine - juvenile offender - sentence according to law - direction sentence be served in a detention centre - direction means form of sentence less severe - appropriate considerations on sentencing juveniles for serious crimes - sentence not in error.

Criminal law - sentence - appeal - manufacture of illicit drugs - chemist teaching others - organic mental and personality problems - increased vulnerability to exploitation but increased capacity for harm because of skills as chemist - severe sentence not manifestly excessive.

Tort - negligence - duty to erect warning signs - whether - road accident caused by failure to erect warning signs or driver’s fatigue and failure to keep proper lookout - contributory negligence - apportionment of liability between concurrent tortfeasors - when appellate court may intervene with apportionment of liability - assessment of damages.

Negligence - motor vehicle incorrectly parked at place of employment - safe system of work - employee injured responsible for system of work - contributory negligence - contribution between employer and fellow employee who parked vehicle - ND

Sentencing - supplying prohibited drugs - sentence not excessive

CONTRACTS - contract for purchase of strata unit "off the plan" - vendor contracted "to make all reasonable efforts to procure the registration by the Registrar General of the Strata Plan" - termination clause if strata plan not registered within twelve months - vendor must fulfil obligation to make all reasonable efforts to secure registration before acting on termination clause - CONTRACTS - sale of unit in proposed strata plan - draft strata plan attached - contract required registration of strata plan "substantially in accordance with attached draft" - Council required reduction in the size of the balcony of the penthouse unit on plan - whether then substantially in accordance with draft - ESTOPPEL - whether facts sufficient to establish representation relied on and conduct based on representation.

Discretion to exclude evidence - Evidence improperly obtained - Admission unfair to accused

Aviation Insurance policy - "low flying" exclusion.