Cases and authorities

Victims Compensation - Appeal from determination - Appeal limited to error of law - Restitution Order - Quantification - Criteria to be applied - Failure to have regard to relevant factor - Manifestly unreasonable - Re-determination by Supreme Court

CORPORATIONS [211] - Winding up by Court - Grounds for winding up - Insolvency - Application to set aside demand - Extension of time and generally - "May only" be made within limited time - No power to extend time - Whether Court may grant injunction to restrain filing of winding up summons as abuse of process where genuine dispute as to debt and company solvent.

Landlord and tenant - Forfeiture of lease for non-payment of rent - Relief against forfeiture sought solely to enable lessee to exercise option allegedly granted in lease - Alleged option unenforceable - HELD: relief against forfeiture refused because option unenforceable - HELD further, relief against forfeiture would be refused even if option was enforceable because plaintiff (lessee) had not established that it was probable that it could obtain finance to exercise option.

Vendor and purchaser - Exchange of non-identical counterpart contracts - Claim for rectification - HELD: Rectification granted

PROCEDURE [598]- Costs- Indulgence- Grant of easement by court- "Two guinea rule"- How far opponent's attitude may disqualify from receiving costs REAL PROPERTY [409]- Easement- Court granted- Requirement for short term easement for scaffolding- No appreciable detriment to servient owner.

Local Court - Appeal - ambit - Contract - Undisclosed principal

SENTENCING - Severity appeal - Applicant convicted under s 25(1) of the Drug Misuse and Trafficking Act, 1985 - erroneously sentenced under s 25(2) of that Act - need for Court to re-sentence.

INSURANCE - Professional Indemnity insurance policy - continuing omission to disclose - breach of fiduciary obligations - dishonesty exclusion clause - ND

Judgment Debtor - assignment - procedure - notice of motion to change name of judgment debtor from assignor to assignee - District Court Rules Part 7.r10(2) - practical purpose of rule.

CRIMINAL LAW - committal proceedings - defendant's application for costs - whether investigation unreasonable - consideration of s42A(2A) of the Justices Act

Cross claim - no case pleaded - struck out - structure of s 7A trial where cross claim

Claim against Fidelity Fund - duty of Council to investigate whether any onus on claimant - necessity to make finding as to honesty or dishonesty - rights of appeal - whether court may make declarations - whether court can decide some elemments and remit question of honesty of the solicitor

EQUITY [13]- Contribution- Whether unequal contribution available at general law- Held not.

CONVEYANCING - vendor and purchaser - valid termination of contract - forfeit of deposit - application for return of deposit - s55(2A) Conveyancing Act 1919

Duty of care - nervous shock - respondent involved in head on collision due solely to the negligence of the deceased - respondent suffers post-traumatic stress disorder blaming himself for his role in crash - discussion of dictum of Deane J in Jaensch v Coffey that duty of care negated where psychiatric illness sustained as a result of death or injury of tortfeasor - Deane J’s dictum not followed - s4(1) Law Reform (Miscellaneous Provisions) Act 1944 does not entrench Deane J’s dictum - discussion of Deane J’s dictum in light of cases following Jaensch v Coffey - liability established - s141 Motor Accidents Compensation Act 1999 - respondent not characterised as a rescuer - respondent distinguished from the "mere bystander" by immediacy of his involvement in crash that caused death - respondent’s reaction foreseeable in circumstances of the crash - appeal dismissed with costs - D.

Interest on Verdict

Corporations Law. Application for summary dismissal in respect of Liquidator's claim under S 588FFof the Corporations Law. Application made out of time. Proceedings dismissed.

LAND - mortgagee in possession - standard of care for security of rural property INSURANCE - indemnity insurance - whether mortgagee in possession may, and if so must, pursue claim to reinstatement on behalf of mortgagor PERSONAL PROPERTY - silos, demountable office block and irrigation pump held not to be fixtures PRACTICE AND PROCEDURE - whether mortgagee who took possession of and sold security committed abuse of process by concurrently taking winding up proceedings against mortgagor and bankruptcy proceedings against guarantor

Family Provision. Application by a brother of the deceased who had cared for the deceased during his later life. Promises by the deceased that he would leave the plaintiff half of the house. In fact only 2/3rds left to the brother. Order made increasing provision for the brother.

CRIMINAL LAW - sentencing - Crown appeal - use offensive instrument with intent to prevent apprehension - driving motor vehicle at policeman to avoid arrest - seriousness of offence

CRIMINAL LAW & PROCEDURE - Appeal - Drug Court - Right of Appeal to Court of Criminal Appeal

cancellation of licence - statutory interpretation - facultative expression "may" - hearsay - admission of evidence

CORPORATIONS [146] - Management and administration - Inspection of records - Purpose of inspection - Determination of whether action justified in respect of shareholder's position as a minority shareholder.

Sexual harassment - complaint out of time - whether "good cause" shown under s 88(4) Anti-Discrimination Act 1977 - relevant considerations - procedural unfairness

[EVIDENCE] - Application by defendant to prevent the plaintiff having access to documents produced under a Notice to Produce on the basis of client legal privilege (ss 118 and 119) - Whether privilige has been waived (ss 122 & 126) - Whether document should be withheld on grounds of fairness.

BANKING AND FINANCIAL INSTITUTIONS [104] - Instruments - Letters of credit - Irrevocable letter of credit - Right to refuse payment - Bank with notice of fraud - EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Delay by applicant.

SENTENCING - Severity appeal - trial counsel did not raise good character - whether miscarriage of justice.

Negligence - contributory negligence - damages - "a worst case"

Family Provision. Claim by a niece of the deceased on the basis that she was part of the deceased's household and partly dependent upon him. Estate left to deceased's siblings. Order for small legacy made.

CONVEYANCING [10]- Option by will- When exercised - SUCCESSION [168]- Construction- Option "in the event of X not wishing to purchase"- X indicates wish then withdraws.

Claim for possession - cross claim against lender seeking relief pursuant to Contracts Review Act - cross claim against solicitors - breach of retainer, negligence and breach of fiduciary duty (no informed consent to double employment and non-disclosure of material facts).

Appeal after convictions - convictions unreasonable and unable to be supported - Summing up - directions and warnings on relationship evidence

Application for leave to appeal against severity of sentence - importation of cocaine - parity - sentencing judge's findings inconsistent with agreed statement of facts.

SENTENCING - Severity appeal - sexual offences involving young children - whether judge erred in declining to set a non-parole period.

Sentencing - severity appeal - juvenile - whether judge erred in determining that the matter should be dealt with according to law.

NEGLIGENCE - slipping case - on facts, slipping not caused by failure to guard against risk. ND