Cases and authorities

Inquiry - Value of shares and units - Compulsory purchase - Consent orders - Nature and scope of inquiry - Allegations of oppression - Whether an estoppel as to oppression arises in conseqence of consent orders - Relevance of oppression - Fair market value

Practice & procedure - anti-suit injunction - abuse of process in maintaining proceedings in Industrial Relations Commission - dominant purpose of Commission proceedings.

medical negligence - laparoscopic cholecystectomy- hypoxic brain damage - Verres Needle - Trocar - plaintiff malingering - fund management

Criminal law - appeal - Crown appeals against asserted inadequacy of sentence considered - complicity in very serious assault - assistance in hiring assailant - injuries to victim not within contemplation of respondents - Regina v. Stokes & Difford applied - sentences not inadequate.

CATCHWORDS - CRIMINAL LAW- appeals - Crown appeal against inadequacy of sentence - s5D of the Criminal Appeal Act 1912 - robbery whilst armed - robbery whilst armed with dangerous weapon - robbery in company - Form 1 matters - aggravating circumstances - accelerating criminality - principle of totality - concurrent sentences - double jeopardy

Insolvency - s.588FE Corporation Law - "party" to a transaction - ss 172 and 221YHG(2) Income Tax Assessment Act, 1936 - illicit preferences.

Costs - ND

GUARANTEE - discharge - expressed to be in consideration of creditor voting in favour of resolutions - creditor voted against resolutions - guarantor not obliged to pay - no question of effect on guarantor's interests or of election by guarantor. D

Stamp Duties Act - assessment dated 27 August 1992 - Division 30 - transfers of shares in a land rich company - 6% transfer of ownership - ss99A, 99E, 99F, 124A - exercise of discretion contained in s.99F(3) - intention of parties to transaction - assessment made afresh - setting aside of aggregations.

CRIMINAL LAW - whether intellectually disabled accused fit to be tried - trial Judge terminated enquiry as to fitness and discharged accused - Judge failed to fully consider procedures under governing legislation - decision not supported by governing legislation - application for remedy in the nature of prerogative relief - Mental Health (Criminal Procedure) Act 1990, s 10(4) - Mental Health Act 1990 (NSW), Ch 5 Part 2

Partnership - Real estate development - Units held in trust - beneficiary - res judicata - Arnold v Westminister Bank Pty Limited distinguished.

Family Provision Act - provision from estate extinguishes pension rights of invalid son - provision reviewed.

Summary judgment - Possession

CRIMINAL LAW & PROCEDURE - mental health - fitness to be tried - issue raised in good faith - no alternative but to order inquiry - mis-trial

COSTS — Corporations — Recovery of costs for funding creditors under s564 of Corporations Law — to be paid from proceeds of recovery or by other creditors who strenuously opposed 100% recovery.

CONTRACT - Sale of shares - Restraint on competition - Promise by purchaser not to tender for certain business on its own account or jointly with another - Whether breached by tender by subsidiary. CORPORATIONS - Holding and subsidiary companies - Whether tender by subsidiary was as agent of holding company - Whether holding company tendered jointly with subsidiary.

Contempt - improper pressure on a litigant.

SUCCESION [74] & [90]- Administration- Minor taking on intestacy if mother not deceased's de facto wife- Whether grandmother should be appointed minor's guardian to contest claim for administration.

The case turns on its facts

Contracts - Principal and Agent. Proceedings commenced on behalf of a company without authority. First Liquidator declines to ratify solicitor's actions. Second Liquidator adopts proceedings by filing and amended statement of claim. Held solicitor's actions ratified by second Liquidator. - Practice - Application to dismiss proceedings based on Limitations Act defences. Held appropriate in part. - Corporations Law - Whether s 1322(4)(d) of Corportions Law impliedly repeals s 14(1) of the Limitation Act. Held point premature at this stage.

Severity appeal - Wounding with intent to murder - Wounding with intent to cause grievous bodily harm - Shooting - Mental disorder

CRIMINAL LAW - appeal against conviction and sentence - relationship evidence - voluntariness of record of interview - DNA evidence - appellant's instructions to counsel during trial allegedly disregarded - application of Rule 4 - appeal against sentence stated no grounds - appeal against conviction and sentence dismissed.

Building sub-contract - subcontractor stopped work - dispute as to which party repudiated the contract - "of-the-cuff" reserved judgment - inadequate findings unrelated to the pleadings - conflict of evidence - new trial - ND

Criminal Law - sentencing - manslaughter - substantial impairment by abnormality of mind

extension of limitation period - ss 60C & E - add defendant - file amended statement of claim

Appeal decision of Residential Tribunal - Denial of natural justice - procedural fairness

CONTRACTS - Building, engineering and related contracts - Retention moneys and security - Performance bond - Effect of Superintendent's certificates. - INJUNCTIONS - Interlocutory injuncitons - Balance of convenience.

CORPORATIONS [189] - Receivers, managers and controllers - Appointment - By creditors - Whether party appointing may rely on ground not relied on at time of appointment to justify validity of appointment - Whether receiver may be appointed on ground of winding up where no sum presently owing to appointor.

Professional Negligence

CONTRACTS [134], [137] - General contractual principles - Discharge, breach and defences to action for breach - Repudiation - Other particular cases - Intention not to perform obligation to maintain house provided under contract for occupation by mother - Election - Effect of commencement and abandonment of action for specific performance on right to terminate and sue for damages.

Criminal law - Crown appeal against asserted inadequacy of sentence - sentence inadequate - on re-sentencing, Regina v. Thomson & Houlton applied.

Criminal law - Crimes Act 1900 s 61I - sexual intercourse without consent - husband/wife - severity - special circumstances - sentence appropriate

Criminal law - appeal - verdict asserted to be unsupported by the evidence - identification - reliability - role of jury - no basis for doubt.

NEGLIGENCE - contributory negligence - damages - employee injured when chain dog unexpectedly opened - finding of worn chain dog and unsafe system of work upheld - but evidence of pre-existing condition potentially affecting earning capacity - conflict over fitness for work and loss of earning capacity - apparent error in not allowing for pre-existing condition - if not, reasoning not apparent - new trial as to damages. ND

Transfer from District Court

CATCHWORDS - CRIMINAL LAW - meaning of the word "solicit" - s68A Jury Act 1977- question of law or fact - natural and ordinary meaning - special or confined meaning - jury process - protection of sanctity of the jury process

Criminal Law - accused not guilty on the ground of mental illness

Defamation - imputations pleaded - alleged oral publication - radio broadcast - capacity of matters complained of to convey imputations about plaintiffs - where defamation is of a class, plaintiffs not individually named - imputations framed in passive voice - capacity of imputations to be conveyed by matter complained of - imputations differing in substance.

Contract - negligence - Trade Practices Act 1974 - sale of bulldozer - no breach of contract - no negligence - no breach of Trade Practices Act.

Defamation - theatrical performance - description of performance as the matter complained of - content of matter complainted of .

Professional negligence - notices of motion pursuant to SCR Pt 13 R 5 that the proceedings be dismissed, in the alternative that they be permanently stayed - further alternative pursuant to SCR Pt 15 R 26 that the proceedings be struck out - duplication of proceedings - abuse of proceedings.

Criminal Law - accused unfit to be tried - qualified finding of guilty of murder - nomination of limiting term

PROCEDURE [683]- Contempt- Intimidating prospective plaintiff- Whether contempt- Element of intention- How satisfied.

Interlocutory orders - commencing action out of time - s52(4) Motor Accidents Act - discretion to admit and consider evidence on second interlocutory application - no general rule precluding an unsuccessful applicant for interlocutory orders from repeating the application without fresh evidence - abuse of process - whether it is fair and just that time for bringing an action be extended - after delay significant prejudice not accruing to appellant in respect of liability and damages - whether solicitor’s mistakes act as bar to client obtaining extension of time - hearing on the merits - s75A(8) Supreme Court Act - D

BUILDING & CONSTRUCTION - subcontractor - not licenced - whether subcontractor - unlicenced - enforceability of subcontract against principal builder

Limitation period - Negligence - Quadraplegic - Damages - Delay in commencing proceedings - Discretionary powers

Criminal law - sentence - murder - change of plea before jury - life sentence criteria for power to pass - level of culpability - construction of relevant statutory provisions.