Cases and authorities

Proprietary estoppel - Baumgartner equity - Restitution - Relief against forfeiture

SALE OF GOODS - warranty of merchantability under s 71(1) Trading Practices Act - finding of unmerchantabily upheld - no error in assessment of damages - no question of principle. ND

NEGLIGENCE - motor vehicle accident - allegation of major psychiatric damage - that schizophrenia caused by accident - that schizophrenia accelerated or exacerbated by accident - post traumatic stress disorder caused by accident - trial judge held schizophrenia pre-existing and underwent natural development materially unaffected by accident - held also trauma of accident experienced insufficient to produce psychiatric disorder - decision on facts and assessment of witnesses - no error shown. ND.

CONTRACTS - guarantee and mortgage executed by appellant - appellant claimed to have been misled as to purpose of security - appellant claimed Bank made binding representation to provide finance - finding as to representation crucial to appellant’s case - no error in Judge’s reasons - Judge dealt with all issues - no unconscionability disclosed in Bank’s conduct - GUARANTEE - Bank had no duty of disclosure to director and shareholder of principal debtor

WORKERS COMPENSATION - eye injury - whether condition at trial caused by injury - whether due in part to condition existing before injury - if so what deduction from s 66 compensation pursuant to s 68A Workers Compensation Act - held no pre-existing condition - no deduction - assessment of s 67 compensation at 50% of a most extreme case - whether question of fact or law - held in manner argued was question of fact. D.

Motion for stay

Criminal law - appeal against severity of sentence - dangerous driving occasioning grievous bodily harm - aggravating factor - speed.

Criminal law - appeal against severity of sentence - sentencing of Aboriginal offenders.

Family Provision application by a nephew. Whether plaintiff was part of household and dependent. - Held - plaintiff was not and claim dismissed.

PROPERTY - error in the plan - power of Registrar General to amend plan - conditional subdivision approval - public reserve condition - whether subdivision plan 'substantially in accordance' with deposited plan - ND

Criminal law - murder - early guilty plea - lack of contrition - egocentric offender

CORPORATIONS — s459S of Corporations Law — Threshold requirement of s459S(2) whereby the relevant debt must be pivotal to solvency — Whether company solvent in particular case — Other discretionary factors in giving or withholding leave.

M'Naghten Rules

Criminal law - application for enquiry after conviction - possibility of evidence affecting credit of crucial witnesses - principles on consideration of directing enquiry.

EQUITY — De facto relationships — Termination of relationship in which male de facto came to own property jointly with female de facto’s mother — Contributions to purchase price and to servicing mortgage for purposes of sharing in sale proceeds if trust for sale ordered — Whether male de facto agreed to contribute to mortgage on sole basis or jointly with the mother — Effect of decline in value of property — Whether payments made by female de facto from three-way loss-making partnership between two de factos and mother or from riding business owned 50/50 by de factos should be attributed proportionately to male de facto — Effect of so doing when he had not contributed sufficiently to mortgage — Basis for discretion to order sale under s66G of Conveyancing Act.

Strike out application - injurious falsehood - misfeasance in public office - interference with economic interests - negligence - breach of statutory duties

Torts - negligence - economic loss - causation - novus actus interveniens - failure to mitigage loss - aggravation of loss - contributory negligence - reasonableness of failure to remedy building defect - Torts - negligence - limitation - knowledge of damage - capacity, with reasonable diligence, to discover damage - Limitation Act 1969 ss 14 and 63 - Practice and procedure - pleadings - defence - amendment applied for after close of evidence - D

CRIMINAL LAW - whether offender's name should be published/broadcast - public interest considerations - s 11(4B) of the Children (Criminal Proceedings) Act 1987

Sentence - murder - significance of plea of guilty - significance of youth - whether non-parole period can be set where life sentence imposed

PROCEDURE [701] - Contempt, attachment and sequestration - Power of courts to punish for contempt - Supreme Court - Generally - Purging contempt - Principles.

CRIMINAL LAW - Sentence - domestic violence - breaking into victim's home and assaulting her - errors in remarks on sentence - no question of principle

CRIMINAL LAW AND PROCEDURE - appeal from decision of District Court - subpoena for production of documents - sexual assault communication privilege - 'protected confidence' - meaning of 'counsellor' as defined by s 148(4)(a) Criminal Procedure Act 1986

AS TO FIRST INDICTMENT - appeal - act of indecency - homosexual intercourse - effectively Crown relied solely upon complainant's evidence - verdict of guilty on two counts and not guilty on one count - whether guilty verdicts unsafe and unsatisfactory - AS TO THE SECOND INDICTMENT - appeal - indecent assault - whether conviction should be set aside following plea of guilty by reason of imprudent and inappropriate advice tendered to appellant by his then legal representatives.

TORT - Negligence - Damages - Appeal - Failure to allow for vicissitudes - Whether balanced by other errors - Whether new trial should be ordered. ND.

WORKERS COMPENSATION - master and servant relationship - worker - cross-examination on credit post injury - ND

PROCEDURE - PLEADING - AMENDMENT. Claim of fraud or voluntary transfer with no intention to pass beneficial interest - Fraud claim dismissed - Resolution of alternative claim requiring consideration of what was intention of transferor - Tentative finding of intention that could justify relief not sought - Whether amendment permitted.

Insurance contracts - accident at building site - competing insurance claims - double insurance giving rise to contribution rights between insurers - principal-arranged insurance - duty on the owner of vehicle to take out third-party insurance - clauses to protect insurer from claims which should be covered by compulsory motor vehicle insurance - meaning and application of s45(2) Insurance Contracts Act 1984 - "other insurance" clauses limiting an insurer’s liability - using a Law Reform Commission Report to identify the mischief to which legislation is directed - "the operation or use of a motor vehicle" - (ND).

Family Provision Act 1982 - de facto spouse - adequate provision ND

Dismissal of action - failure of claimant to co-operate in the conduct of dispute to bring to settlement - Motor Accidents Act ss48A, 50A and 52(1A) - failure to reply to offer of settlement before proceedings commence - claimant's failure to produce tax returns - claimant's failure to arm opponent with documents - breach of Part 9 Rule 27 District Court Rules - leave to appeal refused. (ND)

Self-executing orders - extension of time after the entry of orders dismissing proceedings

PROCEDURE — Late filing of an affidavit not permitted taking into account justice between the parties and the circumstances — "just, quick and cheap"

Breach of Clean Water Regulations - failure to comply with notice - valid creation of offence by cl 21 - invalidity of part of penalty provisions of cl 21(3) severability - not a continuing offence

CORPORATIONS LAW — Unsuccessful application to set aside statutory demand — Based on whether terms of settlement as later to be reflected in a deed had become effective in accordance with the requirements of the terms of settlement and deed — Simultaneous exchange of deeds not required, if later exchanged — Meaning of delivery — Constructive delivery held sufficient — No substantial injustice from supposed misdescription of debt in the Demand under s459J of Corporations Law.

SUCCESSION [263]- Getting in the estate- Subpoenas usually inappropriate method of discovering assets.

CORPORATIONS LAW — Does recourse to guarantee survive liquidator’s disclaimer of contract guaranteed taking into account s568D(1) of the Corporations Law — Effectiveness of disclaimer — Meaning of "unprofitable contract" — Challenge to disclaimer on basis of disproportionate prejudice.

TRADE & COMMERCE [15]- Restraint- Goodwill owned by company which plaintiff controlled- Covenant taken by plaintiff personally- Ineffective - ESTOPPEL [28]- Estoppel by deed- Recital- Untrue- Whether binding- Whether allowed to affect covenant in restraint of trade.

EMPLOYMENT LAW [42] - The contract of service and rights, duties and liabilities as between employer and employee - Miscellaneous matters - Trade secrets - Information acquired during engagement - Whether information confidential - Whether information part of employee's stock of general knowledge.

LANDLORD & TENANT - REAL PROPERTY - Strata and related titles and occupancy - Landlord seeks registration of strata plan - Tenant of one floor of building applies for injunction to restrain registration - Landlord offers undertakings to protect tenant from being disadvantaged - Injunction refused.

Imputations - capacity - form - published book

CRIMINAL LAW - appeal - verdict - whether unsafe or unsatisfactory - Criminal Appeal Act s 61 - burden of proof - guilt beyond reasonable doubt - undesirability of departing from or explaining conventional formula

Appellant charged with eleven sexual offences - one alleged victim - evidence of admission by appellant - evidence disclosing similar offence with another victim - appellant raises character - cross-examination - evidence of similar offences allegedly committed on two other victims - application of decision in Hoch v R (1988) 165 CLR 292 post Evidence Act 1995 - tendency evidence - directions on character evidence - inconsistent verdicts.

Appeal from decision of Land & Environment Court exercising its summary jurisdiction - conviction of polluted waters - inadequate fine.

AGENCY - false representations - vicarious liabilty - agent acting within course of authority from principal - misleading and deceptive conduct - representations by telephone and post from Queensland received in New South Wales - whether conduct in New South Wales - D