Cases and authorities

Negligence - Motor Vehicle Accident - Liability of driver of vehicle that caused accident - whether contributory negligence - whether damages awarded were excessive - ND

CORPORATIONS - voluntary administration - powers of administrator - control of current account - contractual right to consolidate accounts not a charge - exercise of contractual right of combination permissible - Corporations Law, s437As, s437D, s440D - CORPORATIONS - voluntary administration - powers of administrator - administrator’s right to indemnity - whether priority over rights of set-off or combination - Corporations Law, s443D, s443F - BANKING AND FINANCIAL INSTITUTIONS - Banker and Customer - banker’s general law right to combine accounts - whether current account could be consolidated with debt arising for default under lease - CONTRACT - construction and interpretation - uncertainty - sale and lease back - provision for acceleration of payments on default - failure to specify method of calculation for rebate for future interest - CONTRACT - penalty - finance by sale and lease back - provision for acceleration of payments - whether lessor entitled to retention of lease goods and their residual value

The case involves the application of settled principles to particular facts.

On admissibility of evidence sought to be led from Mr Cook in relation to his connection with Costellos Nightclub - T8164

Admissibility - collateral facts - T8185

Crown Appeal against sentence - one count of importation of a commercial quantity of cannabis - sentence not manifestly inedequate

Crown Appeal against sentence - one count of importation of commercial quantity of heroin - no grounds for disturbing original sentence

ADOPTION - surrogate parenthood - birth mother was sister of W artificially inseminated with sperm donated by H - application by H & W for adoption was fully supported by birth mother - placement in good circumstnaces and no contention among adults involved - consideration of submissions by DOCS adverse to adoption at this stage - consideration of public interest associated with surrogate parenthood - the paramountcy rule was applied - on the facts the interests of the child required an adoption order.

Admissibility - Evidence Act 1995 (NSW) - s 106(a) - T8107

Mortgage - whether executed on misrepresentation - whether executed in presence of bank officers - whether mortgage security for moneys owing - whether moneys lent to others without authority - whether partnership - whether misleading and deceptive conduct - whether unjust contract - whether enforcement of mortgage unconscionable

CRIMINAL LAW - Application to withdraw plea of guilty.

Application by plaintiff to re-open evidence in chief of Mrs Kirk - T8005

ADOPTION - surrogate parenthood - birth mother was sister of W artificially inseminated with sperm donated by H - application by H & W for adoption was fully supported by birth mother - placement in good circumstances and no contention among adults involved - consideration of submissions by DOCS adverse to adoption at this stage - consideration of public interest associated with surrogate parenthood - the paramountcy rule was applied - on the facts the interests of the child required an adoption order.

Criminal Law - whether in the circumstances of the case there was a need of Constitutional power enabling the Commonwealth Director of Public Prosecutions to prosecute for an offence against the Corporations Law of New South Wales. - Criminal Law - whether indictment bad for duplicity. - Criminal Law - s 998 Corporations Law - doing anything intended or likely to create a false or misleading appearance with respect to the market for or the price of securities - whether instructing a stockbroker to sell shares at certain prices is "doing any thing". - Criminal Law - whether prosecution in part an abuse of process.

PROCEDURE [551] - Costs - Jurisdiction - Persons not parties to proceedings - Barrister - Not retained in proceedings - Causes proceedings for removal of caveat by assisting client to lodge unsupportable caveat - Quality of conduct necessary to found order.

CORPORATIONS - administration - appeal from rejection of proof of debt - proof of debt - EMPLOYMENT - SPORT and RECREATION - Rugby League coach - the plaintiff appealed against rejection of proof of debt under Deed of Company Administration for Norths Rugby League Club - by written agreement of 3/2/099, Norths agreed to contract plaintiff as coach - contract was to be a later document to be entered into by 30/11/99 - no contract was entered into and Norths passed into Administration and joint venture with Manly and impliedly repudiated the agreement - plainitff obtained employment as coach of Easts at lower remuneration - question whether employment had commenced before Administration - found it had not - questions of construction of agreement - question of implications about the term of the proposed employment and termination on notice - assessment of damages for breach by accepted repudiation - decision on terms of parties' documents - appeal allowed and admitted to proof for $65,000 damages.

Evidence - admissibility - MFI 275 - Evidence Act 1995 (NSW) ss 102 & 108 - Credibility Rule - prior consistent statement - T8041

Possession - whether lease forfeited - whether rent and moneys unpaid - whether demand for payment

Defamation - whether defamatory imputation could be drawn from publication - pleading of defamatory innuendo - qualified privilege under statute and common law - whether defendant afforded natural justice - whether proceedings should be remitted for rehearing on damages alone

Plaintiff’s application to lead evidence from witnesses other than the plaintiff on question of damages

EVIDENCE - Criminal Proceedings - admission in official questioning - accused was asked, in an interview which was not electronically recorded, "Do you wish to participate in a line-up." and answered "No" - Magistrate admitted picture identification evidence after having regard to this q & a when considering objection - Evidence Act subs 115(5) made picture identification evidence inadmissible unless the accused refused to take part in an identification parade - it was contended that the q & a should not have been regarded when ruling on the objection because the q & a were an admission and the conditions for admissibility of evidence of an admission in Crimes Act s 424A (relates to electronic recording) (see now Criminal Procedure Act s 108) had not been complied with - meaning of "admission" in s 424A and significance of definitions of "admission" and "representation" in Evidence Act 1995 - cognate legislation - held - the q & a evidence of refusal were not evidence of an admission within s 424A - Magistrate was correct in having regard to q & a when ruling on objection to picture identification evidence.

ASSOCIATIONS AND CLUBS - interpretation of constitution of Royal NSW Canine Council and affiliated club - right to show

CORPORATIONS - voluntary administration - statutory time limit for convening of meeting not complied with - whether to extend convening period - s437A Corporations Law

Trusts - Estoppel. - Plaintiff pays sum for extension to house of friends to accommodate herself and two children in the expectation that they could live there indefinitely. - Venture fails. - Held appropriate relief was the imposition of a charge.

Criminal Law & Procedure - sentencing - murder - intent of grievous bodily harm - sexual assault - guilty plea - intoxication

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

EQUITY - husband and wife - whether principles in Garcia are available in De Facto relationship - held, no. - CONTRACTS - Contracts Review Act. - MORTGAGE - relief under Contracts Review Act. Bank lent money to Vertee P/L on mortgage and guarantee of Mr H and Mrs G (de facto partners) to make investment in Mr H's employer - Mrs G thereby imposed large burden on herself and her half share in dwelling - loan money mostly applied for Mr H to purchase other half share from Mr G - insufficient amount applied to investment to obtain interest in employer - Bank's appraisal of loan application was inadequate as overall the proposal and repayment were unfeasible - Mr H misrepresented the transaction to Mrs G - on the facts, Bank did not owe duty to Mr H or Mrs G - Mr H liable to Mrs G for misrepresentation - Mr G granted relief against Bank under Contracts Review Act - Mr H refused relief.

Contract - Implication of terms. Held in the circumstances the suggested terms would not be implied. - Conveyancing - Contract rescinded by vendor. Whether notice to complete required completion by a time or date. On its construction held it required completion by a time. Whether sufficient time allowed to make time of the essence. Having regard to estoppel by convention sufficient time allowed. - Conveyancing - Statutory protection of purchasers. Held that in the circumstances no order should be made under s 55(2A) of the Conveyancing Act.

Criminal Law. Jurisdiction practice and proceedure. - Application for certiorari to quash decision to discharge defendants in committal proceedings alleging a perversion of justice under s 319 of the Crimes Act. - In the circumstances no grounds for order sought. - On discretionary grounds the order should be rejected in any event. - Proceedings dismissed.

Imputations - capacity - "Harrison" - form

Driving in a manner occasioning death - driving in a manner dangerous to other persons - driving under the influence of alcohol and drugs - two vehicles in a collision at an intersection - issue as to driver.

Costs - ND

Succession - Claim under family provision legislation by children of testator - Whether adequate provision for advancement in life - Where testator left bulk of estate to life partner - Family Provision Act 1982, ss 7,9 - NR

Particulars of publication and identification - adequacy - imputations - capacity

TORTS [227] - Trover and detinue - Remedies - Action for conversion - Damages - Value at time of conversion - Circumstances in which cost of replacement by manufacturer may be taken as value.

Admissibility - "collateral facts" rule - Evidence Act 1995 (NSW) s 106(c) - T7920

Criminal Law - evidence - identification - where identification made from a photograph - time lapse between offence and identification - admissibility. - Criminal Law - evidence - identification - jury direction.