Cases and authorities

CRIMINAL LAW - supply of amphetamines - adequacy of directions on joint enterprise - no question of principle

CORPORATIONS — ASIC injunction to restrain a meeting of participants in an investment scheme to convert to shares in a listed company and terminate original project — Arguable case of insufficient disclosure — Effect on balance of convenience of participants representing necessary majority confirming other additional information would still vote for change — Need to maintain policy of the law met by former ASIC discretion in approving future amendments to trust deed following meeting — Other conditions to avert injunction.

Sentencing; relevance of exceptional hardship of sentence being served in foreign country; irrelevance of liability to deportation.

CORPORATIONS — Scheme of Arrangement — Nature of enquiry and of matters to be considered by the Court under s411(6) in considering adequacy of disclosure and fairness — Continuing disclosure where adverse deterioration in financial position of scheme company — Compulsory acquisition of scheme shareholders’ shares not contrary to Gambotto principles.

Criminal Law - knowingly making false statements with intent to obtain financial advantage; senior executive and company directors' statements to obtain and maintain credit facilities; false impression created; admissibility of prejudicial evidence to establish knowledge; adequacy of summing up; sentencing; relationship of public deterrence and subjective factors; duties of directors and company executives.; overwhelming Crown case

Appeal - Admission of fresh evidence - Matters occurring after trial - Subsequent statements by witnesses said to be inconsistent with their evidence relied on by trial judge

ADMINISTRATIVE LAW: Appeal from Equal Opportunity Tribunal - adequacy of Tribunal's reasons

Sentencing; manslaughter; unlawful and dangerous act; use of knife; single stab wound; sentence of 8 years 6 months penal servitude, with minimum term of 5 years 6 months.

Sentencing; application for determination concerning life sentence for murder; seven stab wounds to body of deceased; application granted; sentence of nineteen years penal servitude with minimum term of thirteen years six months; Sentencing Act, s 13A.

CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations - Meeting date falling between Christmas and New Year.

Criminal Law; Identification; Photographs; Cross examination improper

Criminal law; verdict; factual basis of verdict; enquiry by judge of jury; discretion; sentence; factors to be taken into account; worst type of case; duty of judge to find the facts after verdict

New trial; whether necessary; issues sufficiently raised at first instance

Will; Document purporting to be Will; Admission of fresh evidence; Undue influence

Contract; Breach of contract; Carriage and storage of goods; Theft of goods; Liability; Damages; Exclusion clause; Standard terms of contract; Third party liability

LAND TAX - Family company as discretionary Trustee - Whether land tax assessment was correct - Whether Trustee was the "owner" of the land - Land Tax Management Act 1956 s3(1) - "owner" - Whether land was subject to a "special trust" for certain years - Effect of directors’ resolutions appointing a Vesting Day - Construction of a document requiring computation of time "from" a named day or date

Costs

Workers Compensation; Apportionment; Lump sum entitlements of dependents; Workers Compensation ; parties; apportionment application; Workers Compensation; costs; apportionment application

Damages; Motor vehicle accident; past and future economic loss; non economic loss; test of probabilities versus test of possibilities

WILLS — Blind elderly testator but with testamentary capacity — No attestation or other sufficient basis for assuming changed Will read to him — Complex change as would have required to be read to testator for it to be sufficiently established that he knew and approved the Will — Shifting onus where suspicion cast on Will — Not within problematic notion of compromise as evidence sufficient to lead to setting aside later Will and admitting earlier one.

Interrogatories

DAMAGES [22] - Measure and remoteness of damages in actions for tort - Remoteness and causation - Proof of causation - Whether negligence in preparation of valuation for financier causative of damage to purchaser of real property; REAL PROPERTY [222] - Valuation of land - Valuers - Duty of care - Valuation commissioned by financier - Whether duty of care owed to intending purchaser - Breach of duty - Danger of hindsight infecting valuation evidence; TRADE AND COMMERCE [92] - Trade practices and related matters - Consumer protection - Misleading or deceptive conduct - Particular classes of conduct - Real estate transactions - Valuer - Valuation alleged to be wrong and to constitute misleading or deceptive conduct

Family Provision; Claim by two adult daughters; Entirety of estate left to defendant; Relationships between testator and her children; Financial and material circumstances of plaintiffs; Present needs of plaintiffs; Defendant conducted hearing in person; No evidence of defendant's financial circumstances; Little evidence of his material circumstances; Competing claim of defendant; Statements made by testator in her will.

FAMILY PROVISION - sister - large estate - long history of partial dependency - sister aged 78 in need of large expenditure for care - annuity $35,000.

Corporations Law. Proof of non-delivery of statutory demand. In the circumstances non-delivery proved. Issue of parallel proceedings to recover amount claimed as a debt in the winding up proceedings. Held present proceedings are an abuse of process. Summons dismissed.

Corporations Law. Applications to set aside statutory demands. No genuine dispute established.

Costs to be paid before conclusion of proceedings: Part 52A rule 9.

Defendant's applications re Plaintiff's List of Documents

EVIDENCE - Admissibility - Tendency and Coincidence (Evidence Act 1995 (NSW) ss 97, 98, 101) - Whether probative value substantially outweighs prejudicial effect (s 101(2))

CONTRACT - Forestry Commission - effect of need for Minister's Approval under s.11(1)(m)ii) of Forestry Act 1916 - no power without Minister's approval - detailed consideration of facts after remitter by Court of Appeal [1999] NSWCA 125

Taxes and dutes - Stamp duties - Mortgage executed but not stamped until hearing - Mortgagor becomes bankrupt - Whether Official Trustee's title subject to mortgage.

Corporations Law. Application to set aside statutory demand. Demand set aside. No matter of principle.

CRIMINAL LAW & PROCEDURE - Sentencing - Manslaughter - Provocation

Criminal law - breaking, entering and stealing - 3 separte offences - 2 such offences committed in breach of bail conditions then current - very bad antecedents record - applicant sentenced, effectively, to penal servitude for 5 years and 9 months: MT3 years and 9 months/ AT 2 years - agreed sentence not challenged but minimum term challenged as appellably excessive in failing to give any, or any sufficient, attention to factors of mercy and rehabilitation; Held: no errors demonstrated - appeal against severity dismissed

CRIMINAL LAW; PARTICULAR OFFENCES; property offences; breaking, entering and stealing, s112(1) Crimes Act 1900 (NSW); CRIMINAL LAW; SENTENCING; sentencing guidelines; appropriateness of a guideline judgment; prevalence of the offence; impact on prison population; particular offender profiles; CRIMINAL LAW; SENTENCING; type of guideline; quantitative guidelines not appropriate; variety of circumstances in which offence committed; majority of cases heard in local court; sentencing considerations outlines; circumstances of aggravation and mitigation

Criminal law - break, enter and steal - pleas of guilty to 7 offences - 18 further offences taken into account, 12 of which were further offences of breaking, entering and stealing; 2 were offences of breaking, entering and stealing with intent and 3 were offences not being offences of breaking, entering and stealing - applicant sentenced to penal servitude for effectively 6 years: MT 3 years/AT 3 years - appeal against severity dismissed; Applicant submits that sentencing Judge wrongly failed to take into account the requirements of the Drug Court Act 1998 - held: no such error

CRIMINAL LAW - evidence - whether Crown witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding - whether direction to jury required - Evidence Act s165

Environmental Planning and Assessment Act; charges alleging dredging within specified oyster leases in contravention of Council consent; dredging outside specified leases without Council consent

Criminal Law - appeal - fresh evidence - whether the unavailability at trial of evidence of the dishonesty of a Crown witness led to a miscarriage of justice. Held: no

Criminal law, breaking, entering and stealing - 8 separate offences - receiving - 3 separate offences - applicant sentenced in respect of the 8 offences of breaking, entering and stealing to penal servitude for 4 years, MT/2 years, AT/2 years. Applicant sentenced in respect of the receiving sentences to penal servitude for a fixed and concurrent term for 2 years - appeal based upon parity with a co-offender whose sentence had been reduced by an earlier decision of the CCA - held: some adjustment justified by reason of parity - appeal against sentence allowed and the minimum term of 2 years imposed in respect of the offences of breaking entering and stealing reduced to 1-1/2 years.

NEGLIGENCE - medical practitioner - swab left in patient - theatre staff keeping count - surgeon not personally negligent - res ipsa loquitur inapplicable - whether surgeon responsible for default of theatre staff because owed non-delegable duty of care - no, because extent of surgeon's duty of care entitled him to rely on theatre staff.

Workers Compensation; entitlement to compensation for psychological injury; reasonable action by employer with respect to transfer; error of law; meaning of "transfer"; meaning of "workers"; interpretation of s11A(1) of the Workers Compensation Act 1987.

Assessment of damages for personal injury

Coal Acquisition Act; Application for relief in nature of prerogative or declaratory relief

NEGLIGENCE - 13 year old boy jumps onto moving wheat train - falls off - railway yards unfenced - whether defendant negligent - contributory negligence - assessment of damages.

VENDOR and PURCHASER - Option to purchase - exercise - effect of condition in option forbidding assignment - effect in equity against grantor of option of purported assignment; consideration of - formality in exercise of option. Deed of Grant of Option created rights personal to grantee and forbad assignment without consent except to related entity. Grantee and plaintiff by informal document agreed to assign the option and the purchase contract. On the facts, the informal agreement was conditional on their making a further agreement which could be put to Grantor as making plaintiff a related entity. As no further agreement was made the informal agreement did not create any equitable interest in the plantiff. Consideration of grantor's position in equity as against plaintiff where the Notice of Exercise wrongly asserted that the plaintiff was a related entity and it was not disclosed that there had been a purported assignment.