Cases and authorities

Negligence - Motor Vehicle Accident - whether appellate court intervention was warranted on the trial judge's finding on contributory negligence - whether trial judge's reasons were sufficient on damages - ND

INSURANCE - Co-insured parties - Respective rights and interests - Joint or composite policy and interests - Where insurance policy covering joint interest in partnership property - Fraud of one of the insured (by setting fire to property) - Insurer's liability - Whether indemnity of innocent co-insurer - CONTRACTS - Parties - Joint or several contractors - Whether promise made to two persons jointly or severally - PARTNERSHIP - Interests in partnership property - Insurance of partnership property - ND

APPEAL - PRACTICE & PROCEDURE - Leave to amend notice of appeal not allowed as relevant appeal ground could not be made out - grant of leave would be futile - PROCEDURAL FAIRNESS - Whether denial of natural justice - where submissions made in absence of applicant's counsel but in presence of solicitor - ND

Negligence - Landlord and Tenant - whether owner and real estate agent liable to injured tenant for collapse of a wall - whether damages awarded to tenant were excessive - ND

ADMINISTRATIVE LAW - Council decisions - jurisdiction of the Land and Environment Court to review - legal not merits review - Land and Environment Court Act 1979, s20(2) - Local Government Act 1993, s676(1) - ADMINISTRATIVE LAW - duties of Council - "responsibility" - "unreasonableness" - Local Government Act 1993, s7(d), s124, s674 - Environmental Planning and Assessment Act 1979, s123 - Constitution Act 1902, s51(1) - ADMINISTRATIVE LAW - Council discretions - "may" - Local Government Act 1993, s124, s172(2), s673 - Interpretation Act 1987, s9

Contract - Held, the plaintiff failed in his claim to one-third of the proceeds of a winning Lotto ticket alleged by the plaintiff to have been purchased on behalf of an alleged three member syndicate of which the plaintiff was a member.

Deposit cheque paid at auction replaced with cheque and bond the following day - Ostensible authority of agent to "accept" bond in part payment of deposit - Purported termination of contract for failure to pay deposit - Application for order for specific performance - Cross claim against agent for breach of duty and breach of s 84AB of Property Stock and Business Agents Act 1941 - Ratification of agent's acceptance of bond.

Sentence appeal - Robbery in company - Subjective features - no error

Sentence appeal - Aggravated robbery - gambling addiction

Sentence appeal - Sexual assault - Intoxication irrelevant

EQUITY — Injunction — Interlocutory orders to maintain status quo where specific performance later to be sought of contract to allot 25% equity in joint venture company to exploit an invention — Fundamental requirement that plaintiff be appointed as managing director and co-signatory — No serious question to be tried that plaintiff would be allowed specific performance where plaintiff effectively repudiates contract by requiring power to override majority so as to assert erroneous interpretation — Lack of readiness and willingness to perform —Specific performance also precluded for non-severable appointment as managing director and for on-going joint venture or partnership obligations necessarily entailed — mutuality principles.

Family Provision, - Claim by adult daughter - Substantial estate - Gifts to plaintiff by will of a home unit and legacy of $500,000 - Relationship between plaintiff and testator - Letter from deceased addressed to his executors concerning that relationship - Obligation upon applicant for provision to place before Court as fully and as frankly as possible all available information concerning her financial and material circumstances - Absence of any explanation for failure of plaintiff to earn income, either through her profession as a teacher, or otherwise - No competing claims upon testamentary bounty of testator - Plaintiff must establish her own claim upon its own merits - Plaintiff has no entitlement to equality of provision with that given by testator to his other children - Whether plaintiff has been left without adequate provision for her proper maintenance.

Directions

Practice and Procedure - Forum non conveniens - submission to jurisdiction - delay in application - risk of inconsistent findings in local and foreign courts - potential for abuse of process.

CRIMINAL LAW AND PROCEDURE - Sentencing - Murder - whether life sentence appropriate

APPEAL - no question of principle - financial assistance obtained from Bank to expand pastoral business - whether representations made or assurances given by Bank - whether business expansion undertaken in reliance on assurances - whether Judge's finding of witnesses' veracity established reliability - challenge to trial Judge's findings - whether Bank acted unreasonably - whether Bank acted unconscionably

NEGLIGENCE - Action for damages for personal injury - contributory negligence

DEFAMATION - Imputations - Capacity

Criminal Law - Prostitute - Solicit

Defamation - Imputations - Capacity to convey republication

Admissibility - evidence to rebut "reasonableness" "deliberately misleading" footage - T5279.

EMPLOYMENT - competition in business with former employer - employment contract - implied terms - fiduciary duty - good faith and fidelity - acts preparatory to establishing business - lists and records as employer's property - whether fiduciary duties breached - whether misuse of trade secrets or confidential information - whether interception of maturing business opportunity.

Statutory interpretation - operation of s 98(1) of the Building Services Corporation Act 1989 - entitlement of Fair Trading Administration Corporation to recover from builder for "bad workmanship" in residential building work when building owner cannot do so. - D

Misleading and deceptive conduct - Representations as to the characteristics of a property - Whether the plaintiffs relied upon the representations - Whether waterfront property - Meaning of waterfront property - Position of high water mark - Doctrine of accretion - Loss of riparian rights - Location of boundaries of property - ND

On claim for privilege - O'Gorman subpoena - D20.

CONTRACTS [126] - General contractual principles - Discharge - Frustration - Commercial frustration - Rezoning not achieved - EQUITY [52] - General principles - Duress - What constitutes - TRADE AND COMMERCE [92], [94] - Misleading or deceptive conduct - Particular classes of conduct - Real estate transactions - Joint venture for subdivision of land - Whether representation made in absolute terms that further subdivision would be achieved - Proceedings, evidence and procedure - Pleading - Necessity for reliance on Trade Practices Act s 51A to be pleaded or particularised.

On claim for privilege - Corry subpoena - Elomari.

Mortgage - Construction - Held, mortgage had effect only to secure repayment of debts owed jointly by husband and wife of which there were none - Rectification - Held, the first and second defendants had not established that the mortgage ought to be rectified - Guarantee - Release of Guarantor - Held, release of guarantor operated to discharge mortgagors from liability under the mortgage - Mortgage - Held, deed of variation of principal debt operated to discharge mortgagors from liability under mortgage - Unconscionable Conduct - Held, the third defendant had been guilty of unconscionable conduct with the result that the mortgage was liable to be set aside as against the third defendant - Held, further, that the mortgage was also liable to be set aside as against the first and second defendants - Contracts Review Act 1980 - Held, that the mortgage was unjust in the circumstances in which it was made within the meaning of the Contracts Review Act 1980 - Held, further, that the mortgage should be set aside as against the first and second defendants - Conveyancing Act 1919 - Section 23C(1)(b) - Held, the husband's oral declaration of trust of his one-half interest as joint tenant in the subject land in favour of the wife was valid and enforceable - Limitation Act 1969 - Held, the wife's claim to enforce the oral declaration of trust by the husband in her favour was not barred by the Act

ADMINISTRATIVE LAW - procedural fairness - no breach of hearing rule as matter not determined on a basis on which the claimants had no opportunity to be heard - Industrial Relations Act 1991, s179

SUPREME COURT PRACTICE AND PROCEDURE - Costs - Security for costs - failure to comply with costs orders in proceedings before Industrial Relations Commission - abuse of process - Supreme Court Rules, Pt53 and Pt 51r16

Reasons for decisions on disputed costs orders and on question whether restitution appropriate to be considered in the appeal.

Cross-appeal

Relief in nature of certiorari sought in relation to orders made - not an appeal from decision - first opponent, a minor, victim of an assault - claim for compensation based upon concussion and shock - sought to adduce fresh evidence on hearing of appeal - "special grounds".

Admissibility - relevance - "public interest" - truth - qualified privilege - T5201.

Criminal Law - Sentencing - Parity

CORPORATIONS [229] - Winding up by Court - Winding up application - Orders - Adjournment of hearing - Discretionary considerations - Possible implementation or initiation of voluntary administration to facilitate pursuit of litigation by company.

Family Provision - Claim by two adult children - Obligation to provide as fully and frankly as possible all details of financial and material circumstances - Whether each applicant is left without adequate provision for her or his proper maintenance - Conduct disentitling - Statements by testator - Competing claims upon bounty of testator.

Procedure [110]- Trial- Case "virtually settled" days in advance- Duty to notify court. Procedure [551] Costs- Costs against solicitors and counsel where court time wasted

Employment - Disciplinary charges and procedure - Dismissal - Implied duty of fidelity and good faith - Procedural fairness - Natural justice - Error of law

Succession. Wills Probate and Administration. Application for probate of codicil when testatrix suffered from an alleged delusion that a beneficiary under a will had stolen from the testatrix. - Held testatrix did not have testatmentary capacity. - Probate of codicil refused.