Cases and authorities

TOWN PLANNING - development consent - whether council failed properly to take into consideration the noise impact of the development - deferred commencement condition that consent not to operate until "relevant approvals" by EPA had been obtained - despite deferred commencement condition, council still obliged to consider noise impact - (by majority) on facts, should be inferred that it did not properly do so.

COURTS AND JUDGES - Judgments - Duty to give reasons - Adequacy of reasons - Damages claim for personal injury - Where dispute involves an intellectual exchange between expert witnesses - Where judgment largely consisted of parties’ submissions - Where delay in giving judgment. - LIMITATION OF ACTIONS - Extension of limitation period - Exercise of discretion under Limitation Act 1969, s60G - Onus - Requirement of whether "just and reasonable" to grant extension. - PROCEDURE - Appeal and new trial - Whether Court of Appeal should give directions as to form of new trial. - PROCEDURE - Costs - Indemnity costs - Where defendants conceded to new trial during appeal - Costs of appeal grounds not argued. - D

Negligence - finding of Judge as to credibility -

Limitations Act 1969 NSW - consideration of presumption of prejudice in a case of long delay in the commencement of common law proceedings - determination of prejudice in an application for extension of time to bring common law proceedings - where significant prejudice precludes a fair trial.

NEGLIGENCE - professional negligence - solicitor not negligent in preparation of case or conduct of mediation - solicitor appreciated weakness in client’s case and acted properly in putting pressure on the client to settle on best available terms

motor accident - single vehicle - finding of the trial judge against the weight of the evidence -

NEGLIGENCE - medical negligence - failure to warn - whether failure to warn of possible consequences of procedure - whether would have had procedure even if warned. D.

Discovery - further discovery - Supreme Court Rules Part 23.

Summing up - Consciousness of guilt - lies

De facto relationship - Adjustment of interests of parties in property - Relationship for a period of twelve years, but subject to a number of separations - Respective contributions of de facto partners - Various real property ventures - Defendant received no benefit from sale of property of which she was co-owner - Plaintiff purported to sign transfers in name of Defendant - Alleged authority of Plaintiff to do so - Conduct of Plaintiff and of witness in regard to execution of transfers.

NEGLIGENCE - employer/employee - coal miner hits head on roof bolt - assessment of damages

Manslaughter - plea of guilty - sentence - mother killing young child when contemplating suicide - diminished responsibility - gravely affected by depression - general and specific deterrent - denunciation - community attitudes - suspended sentences and bonds.

EQUITY [34] - General principles - Fiduciary obligations - General principles - Joint venture agreement - Scope of agreement.

ADMINISTRATIVE LAW - Teaching Service - charge of misconduct - disputed questions of fact - procedural fairness

RESTITUTION - improvements to trust property in absence of formal lease, agreement or contract - improvements and work on property encouraged or accepted by trustees - value of improvements awarded - CROWN LANDS - reserve trust - occupation and improvement of Crown land without lease or legal title - continuing negotiations for formal lease - informal arrangement of caretaking of racecourse trust property - no capacity for trustees to enter agreement of nature proposed - plaintiff claimed offer of 40 year lease with 40 year option - conflicting evidence as to terms of negotiations - no compliance with legislative requirements for consent to lease of Crown land

Assault and battery - damages including exemplary and aggravated

EVIDENCE [54]- Opinion- Expert noticing pattern whilst perusing material in course of ordinary work as an expert- Although non-expert opinion, admissible SUCCESSION [33]- Execution- Will on scrap of paper- Suspicious circumstances- Standard of proof- Court not satisfied will genuine.

Evidence - Evidence Act 1995 - Is the Evidence Act a code - Expert opinion evidence - Ultimate Issue Rule - s80 of the Evidence Act - Expert opinion evidence as to foreign law - Proper scope for expert opinion evidence as to foreign law - Rule that expert opinion evidence not to usurp the essential function of the court - evidence allowed.

Criminal law - miscarriage of trial in consequence of conduct of Crown Prosecutor - summing up - inadequacy of instruction to jury as to lies and consciousness of guilt - sexual offences charged - delay in complaint and delay prior to trial - necessity for judge to warn jury as to effects of delay.

District Court - personal injury - motor vehicle accident - interrogatories to defendant driver - plaintiff unable to produce any eye witness - District Court Rules Pt 22A r5 - whether interrogatories "necessary". D.

PRACTICE - Court of Appeal - Review of decision of single judge of appeal - Nature of hearing - Decision must be clearly wrong - No question of principle ND

Application to reopen appeal - contract - right of first refusal to purchase units in proposed new building - no binding contractual agreement made for option variation - appellants submit that it was not open to Court of Appeal to decide case on basis that it did - issue on which reopening sought not one of common ground between parties - appellants’ letters to respondent not an effective nomination of units as contemplated by contract - no estoppel or waiver of contractual rights binding on the respondent - within power of Court to entertain argument on which case decided - discussion of Court’s power to allow new ground of appeal to be added which had not been argued at first instance - leave refused to reopen hearing of the appeal on common ground point - leave refused to reopen appeal on basis of additional evidence relating to Trade Practices case on basis that court misapprehended what was in issue - leave refused to reopen appeal to reconsider rejection of Trade Practices case on basis of defective discovery - refusal of appeal about costs - appeal dismissed with costs - (ND). -

CONVEYANCING - mortgages - Contracts Review Act - whether mortgage unjust - improvident contract - elderly mother gave mortgage over home as security for loan to son - short term loan of estate money - knowledge of lender of improvidence of transaction - failure to make inquiries having been put on notice - beneficiaries may have legal recourse - relief under Contracts Review Act - mortgage set aside - D

SUCCESSION [335]- Family Provision Act- Applicant seeks injunction to prevent sale of asset- Need to sell for administration- Little prospect of obtaining other than a monetary award- Application fails.

Criminal law - accused found not guilty on the ground of mental illness

REAL PROPERTY - trustees for sale under s66G of Conveyancing Act - appeal from orders of Master ordering appointment of trustees for sale and refusing adjournment - no grounds to interfere with discretionary decisions - PROCEDURE - stay of proceedings on orders - application for leave to appeal to the High Court from decision upon which co-ownership entitlement based - stay refused

No question of principle

CORPORATIONS [228]- Winding up application- Money being received by company before hearing- Court may protect creditors by injunction or otherwise.

SUCCESSION [263]- Getting in the estate- What are testamentary expenses for which executor may sell assets- Reasonable costs of defending Family Provision Act proceedings are testamentary expenses SUCCESSION [335]- Family Provision Act- Costs- Executor's costs are testamentary expenses.

CRIMINAL LAW - SENTENCE - supplying heroin - co-offender sentenced later by another judge - parity of sentence

Sentences - severity appeal - robbery - whether sentencing judge gave excessive weight to appellant's prior criminal record.

PROCEDURE [484] - Judgments and orders - Amending, varying and settling aside - Ex parte orders and judgments - defence to part only - Default of appearance not properly explained - Bankruptcy proceedings taken - Undertaking to Court not to rely on judgment to defeat defence as to part.

Sentencing - severity appeal - whether judge erred in accumulating sentences.

CONTRACTS - Consideration - Ratification - Variation of unauthorised contract - Whether intention to give effect to unauthorised contract manifested - CONTRACTS - Options - Exercise - Whether immaterial failure to comply with condition fatal - CORPORATIONS - Management and administration - Directors - Indoor management rule - Person "having dealings with a company" - Statutory assumptions - Company seal accompanied by illegible signatures above words "Director" and "Secretary" - Whether company bound.

LOCAL COURT - appeal from decision in Small Claims Division - no question of lack of jurisdiction or denial of natural justice

SENTENCING APPEAL - drugs offences - quantities of drugs - finding "well in excess" of minimum amounts for the charges - whether finding as to specific quantities necessary - sentencing on non-specific finding permissible in the circumstances - whether sufficient regard to certain subjective factors - whether sentences excessive in light of Judicial Commission statistics - no reason to vary sentences. D.

Assault - appeal against exercise of a trial judge's discretion on an adjournment.

Insurance: Construction of the words "partial disablement" and "total disablement" in a specific fact situation. Held that the respondent suffered "total disablement".

EQUITY — Contribution required in circumstances where first insurer under motor vehicle third party cover paid out injured employee’s claim direct in an action brought only against negligent employee driver — Effect of payment to discharge employer’s vicarious liability — Second insurer insures same employer for workers’ compensation payments to injured employee — Contribution ordered against second insurer for such payments.

Criminal law - Evidence Act s165 - corroboration - motive in complainant to lie.