Cases and authorities

Application for removal of trustees - Authorization by trustee/shareholders of payments of directors' fees to trustee - Conflict of interest and duty - Conduct less than standard expected of ordinary prudent person of business - Breaches of trust - Application to excuse trustees from personal liability pursuant to s 85(2) of Trustee Act 1925

Common law action for damages - application for trial of all issues without a jury - causation and estoppel questions - complex medical issues and prospect of complex legal questions - criteria for decision under s.89(1) of the Supreme Court Act.

Obtain equitable contribution in respect of the burden of a judgment given in earlier proceedings - Two properties, one a home, the other an investment, purchased by father, one of the trustees, who managed son's affairs after the age of eighteen years - money borrowed by way of mortgage - money utilised in father's failing business - undue influence exercised by father over son - breach of retainer - cross-claim claiming indemnity.

Common law damages - unsafe system of work - causation - common sense approach - differing medical evidence - application of principle in Papadopoulos v. NSW Insurance Ministerial Corporation [1999] NSWCA 116 - possible dissection of disabilities due to different accidents - effect of Workers Compensation award for later unrelated injury.

EQUITY [320] - Equitable remedies - Injunctions - Jurisdiction and availability - Effect of existence of other statutory remedies - In general - Effect of availability of criminal penalties.

Criminal Law - Sentencing - Courier of trafficable quantity of heroin (mid range) - permissible range - discount for assistance.

Tax fraud - professional accountant - Application for leave to appeal against severity of sentence

Criminal law - sentencing - applicant author and instigator of offences - applicant sentenced for longer period than principal co-offender - applicant contended sentence offended principle of parity and discriminated against applicant - no error by sentencing judge in circumstances - leave to appeal granted - appeal dismissed

On further application for use of a pseudonym by W2 - T6198

EQUITY - contribution - fault - claim for contribution between insured employer's indemnity insurers seeking contribution from Motor Accidents Act insurer - no evidence of fault giving rise to right of indemnity under MAA policy

On admissibility of evidence of conversation - Evidence Act 1995 (NSW) ss 55, 59, 60, 62, 64, 72, 135 & 136 - T6191

On plaintiff's objection to reading affidavits of the applicant and David Campbell Hungerford on further application for pseudonym - T6190

Extension of time to serve statement of claim

NUISANCE - Public nuisance - Obstruction of public road - Liability of person who created nuisance - Liability of persons who fail to end it - Particular damage to plaintiff - No nuisance justifying damages to plaintiff or injunction - Quia timet injunction granted - INJUNCTIONS - Quia timet injunctions

EQUITY [87]- Relief against forfeiture- Option- Not exercised in due time- Power to grant relief against forfeiture, but only in exceptional cases- No arguable case that present matter exceptional. - LANDLORD & TENANT [41] Relief against forfeiture- Option to renew- Not exercised in due time- Extent to which relief available.

CORPORATIONS — Schemes of arrangement — Approval hearing and role of court — Conditions for approval and/or undertakings or representations to ASIC or the Court — Scope of misleading or deceptive conduct in relation to information memorandum disclosure — Applicable legislation — Representations by silence on matters of opinion — Relevance of complexity of scheme — Future events, matters of opinion and onus — Any need to disclose contrary expert opinion — Differences between company’s and expert’s opinion — Integrity and reliability of voting procedures — Extent of appraisal of fairness — Application of Gambotto principles to scheme and to subsequent demutualisation steps governed by Pt 2B.7 of Corporations Law — Prior asset transfers not breach of fiduciary duty or oppressive.

Criminal law - Use of evidence as to credit as evidence of the fact - Point not taken below - No miscarriage of justice - Evidence to re-establish credit - Rational answer to attack on credibility

ADMINISTRATIVE LAW - judicial review - appeal from decision of Fair Trading Tribunal - clause in building insurance contract limiting liability to claims arising out of work in respect of contracts entered into during a certain period - whether such a clause constituted an unauthorised limitation on liability under the Home Building Act and was thus invalid

Application for leave under s 38 of Evidence Act 1995 (NSW) - T6183

Appeal - Nature of Appeal - Assignment of debt - Notice of Assignment - Service of Notice - Striking out defence - Summary judgment - Discretion

On objection to repitition of line of questioning of witness B L Pearce - T6178

PRACTICE & PROCEDURE - costs - where summons for leave to appeal filed incorrectly in Court of Appeal and claimant should have known appeal lay to single Judge in Equity - Summons dismissed as incompetent - ND

PROBATE - whether will revoked by tearing up - presumption as to revocation of will - renunciation of probate - existence of de facto relationship - revision of ex tempore judgment - bias - alleged perjury of witnesses - credibility of evidence - ND

CRIMINAL LAW - Offences by persons dependent on drugs - Eligibility for program under Drug Courts Act - Requirement that offence not be one "involving violent conduct" - Whether satisfied in case of dangerous driving occasioning death - WORDS AND PHRASES - 'Violent conduct'

Torts - Professional Negligence - settlement of land purchase - solicitor's failure to make contract conditional upon the variation of a restriction on use - solicitor's delay - increased building costs and other expenses - whether damages resulted from the solicitor's negligence - Damages - distinction between damages for professional negligence and damages for breach of warranty

TAXES & DUTIES [436][474]- Land tax- Application to postpone tax- Application must be made during relevant tax year- Right of appeal- Whether Commissioner's determination that there was no power to grant taxpayer's request a "decision". - WORDS & PHRASES- "Is"- "Decision".

Directions as to any further application for a pseudonym: T6143

Family Provision. Application under Family Provision Act by a plaintiff claiming to be the defacto partner of the deceased. So held and orders for provision made out of the estate of deceased.

SUCCESION [55]- Revocation- Inconsistent instruments- No revocation clause- How far former revoked.

EVIDENCE - exclusion of identification evidence when accused seen to be in custody - displacement effect - Evidence Act 1995, s137 - CRIMINAL LAW - sentencing - correct application of totality

COSTS - against successful party - plaintiff succeeded for $500 but failed on all substantial claims in 7-day hearing - plaintiff was ordered to pay defendant's costs on indemnity basis.

On defendant's application to amend case on justification re D18: T6084

On application for a pseudonym: T6069

PRACTICE and PROCEDURE - separate determination - application by first defendant for separate determination of res judicata and Anshun defences arising out of earlier proceedings was dismissed after review of considerations of convenience affecting trial of these proceedings.

CONTRACT - Franchise agreement - Moneys paid by franchisees in response to memoranda from franchisor - Whether enforceable contract - Certainty of terms - Remedy sought by some but not all franchisees - Whether contract frustrated - Specific performance not available - Enquiry as to damages ordered - TRUST - Moneys paid by franchisees to finance setting up of internet website - Whether resulting trust of proportionate share of website - Whether excluded by intention shown in comtemporary documents.

NEGLIGENCE - Foreseeability of harm - Psychiatric injury foreseesable - NEGLIGENCE - Employer's duty to employee - Psychiatric injury - No requirement of shock

NEGLIGENCE - duty of care - foreseeability - psychiatric injury - reasonable foreseeability - injury to a person of normal fortitude - NEGLIGENCE - duty of care - psychiatric injury - injury must be caused by shock in the form of "sudden sensory perception"

REAL PROPERTY - Torrens system - equitable interest - whether oral express trust existed - whether equitable charge over property under commercial credit guarantee - decision on facts and construction of documents - plaintiff’s alleged charged was not made out - second defendant’s informally created trust was enforceable on estoppel principles - GUARANTEES - commercial credit guarantee - incomplete form - whether guarantee binding - whether signature of debtor and guarantor required for formation of contract of guarantee - decision on effect of document.

PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct.

Contract - Proforma Agreement - Terms and conditions to be incorporated - Small print - Insurance - Damage waiver - Unawareness of contracting party - Construction of agreement

Criminal law - jury agremeent as to manslaughter does not require basis or variety of manslaughter to be agreed - sentence not excessive .

Extension of time - s 151D Workers Compensation Act

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Serious question to be tried - Weakness of plaintiff's case - Shortness of time for which injunction sought.

Criminal law - inconsistent accounts given by appellant & directions - fresh evidence - evidence of psychologist on matters of common experience - operation of Evidence Act 1995 - directions as to identification evidence