Cases and authorities

Banker/Customer: special relationship: whether fiduciary relationship: meaning of "basic" facilities: representations of financial support: whether actionable: leave to amend after conclusion of hearing: leave to adduce fresh evidence at conclusion of hearing.

Pleading; Plea in bar; Transfer of proceedings from District Court to Supreme Court

Crown appeal - sentence of 3 yrs periodic detention, following plea of guilty to two offences of supply cannabis in contravention of S 25(1) Drug Misuse and Trafficking Act - assistance to authorities by respondent established to be accurate reliable and continuing - benefit to the community of assistance together with impediment to ongoing assistance by full custodial sentence amounting to exceptional circumstances warranting departure from usual course of imposing full custodial sentence.

Torts [95]- Motor vehicle- Motor vehicle accident- Pedestrian running towards car- Negligence- Contributory negligence

Criminal law; evidence; admissions; considerations of reliability and fairness; Evidence Act ss 85(2), 90.

Evidence - in-court identification - Evidence Act 1995 s114

CRIMINAL LAW - offences - homosexual intercourse - attempted homosexual intercourse - indecent assault;; CRIMINAL LAW - directions to jury - directions as to delay in complaint - directions as to unreliability of complaint evidence;; CRIMINAL LAW - directions to jury - directions on lies;; CRIMINAL LAW - verdicts - "unsafe and unsatisfactory";; CRIMINAL LAW - sentencing - principle of totality;; CRIMINAL PRACTICE AND PROCEDURE - amendment of indictment - discretion of judge;; EVIDENCE - admissibility - tender of ERISP video interview;; EVIDENCE - credibility and weight

CRIMINAL LAW - appeals - appeal against conviction; CRIMINAL LAW - verdicts - error of law or miscarriage of justice under s 6(1) Criminal Appeal Act 1912; CRIMINAL LAW - directions to jury - whether judge misstated evidence in summing up.; EVIDENCE - identification - admissibility of photographs - probative value or unfair prejudice. ; EVIDENCE - identification - whether warning as to picture identification to be given in absence of request from defendant.

Insurance - Marine Insurance Act - Insurance Act - interpretation of insurance policy.

CORPORATIONS LAW - Directors' duties - whether sole effective director owed fiduciary duty to another shareholder - application of rule in Percival v Wright; EQUITY - fiduciary duty - whether director owed fiduciary duty to shareholder in purchase of shares

INSURANCE - double insurance - third party insurance of "driver" of motor vehicle - includes person for twice being in charge of motor vehicle - must be in charge of vehicle which is being driven - construction of Motor Accidents Act 1988.

Damages; past and future economic loss; motor vehicle accident and separate work-related accident; underestimation of impact of injuries on future earnings.

Construction of agreement

Corporation - company - winding up - voidable transactions - action by liquidator under s 588FF - application for extension of time under s 588FF(3) - relevant considerations.

Corporations [281]; Liquidator; Proposed arrangement; Whether compromise; What court needs to consider on application to approve

Real property - conveyancing - contract for sale of land - notice to complete - purchaser's failure to complete on agreed date - whether purchaser entitled to reasonable time for completion after registration of plan - whether notice to complete valid where property is charged with land tax in unassessed amount - whether notice to complete which specifies alternatives of rescission and specific performance is effective - whether notice of rescission must specify breach

DEFAMATION - justification - late amendment application - principles - overreaching of plaintiff - supboena to produce documents - application to set aside - abuse of process

CORPORATIONS — Voluntary administrator’s duty when winding-up not imminent in case of reinsurance company; Is administrator justified in not taking account of s116(3) of the Insurance Act 1973 (Cth) and s562A of the Corporations Law as applicable after winding-up; Duty to creditors.

Criminal law - murder by stabbing and 2 accompanying and serious discrete stabbing offences; defence of mental illness precluding criminal responsibility - Mental Health (Criminal Procedure) Act 1990 (NSW), s.38.; Trial by Judge alone pursuant to an election made in conformity with Criminal Procedure Act 1986 (NSW), s.32(1).; Held: defence established; verdict on each count of not guilty by reason of mental illness - ancillary orders

EVIDENCE [226] - Witnesses - Re-examination - By reference to mental state of witness at time of answers.

Set aside default judgment

CONTRACTS - construction of contracts - power of amendment - derogation from accrued rights - Consideration of principle that power to abrogate rights is construed as operating prospectively (Bailey v NSW MDU 184 CLR 399 at 430) - Share Plan enabled Executives to obtain shares in the company - rules of the Share Plan became contractually binding between employer and Executive - Rules conferred power of amendment on a Committee which was appointed by the employer - rules provided for compulsory repurchase at option of employer within sixty days of termination of employment - Executive left employment, option to repurchase was not exercised - after 2 years, Committee amended rules to extend period of option, employer exercised the option and cancelled the shares. Held that the amendment was within the power of amendment and was valid.

Criminal law - accessory after the fact to murder - plea of guilty - juvenile aged 14 years 9 months at time of offence and almost 17 years at date of sentence. Very compelling subjective features mitigating significant objective culpability. Held: appropriate penalty, a deferred sentence and recognisance pursuant to s.558 of the Crimes Act 1900 (NSW).

Criminal Law - evidence - behaviour of tracker dog - whether admissible; Criminal Law - evidence - voice identification - whether verdict could be supported having regard to the evidence.

CORPORATIONS: Cross-vesting where relevant events occurred in Western Australia in relation to a company incorporated and having its principal place of business, assets and projects there.

CORPORATIONS — Compulsory acquisition — Application to Federal Court under s701(6) of Corporations Law over two years ago which did not anticipate successful challenge to Federal Court’s jurisdiction generally in Corporations Law matters — Settled view of law at time of application in favour of Federal Court’s jurisdiction — Subsequent decision to contrary over two years later — Fresh application to Supreme Court of New South Wales under s701(6) of Corporations Law out of time unless dispensation given under s1322(4) of Corporations Law or covered by s1322(2) — Availability of dispensation — Does substantial injustice preclude.

LANDLORD AND TENANT - Residential Tenancy Agreement - Non-payment of rent - Powers of the Local Aboriginal Land Council.

PROCEDURE — Costs — Costs to be awarded to supporting creditor on a limited basis only where role essentially passive — Priority to be no less than for applicant for winding up.

CRIMINAL LAW; Appeal; Limiting term; Minimum and additional term; Factors to be considered; Whether limiting term was manifestly excessive

TRUSTS and TRUSTEES - variations under Slip Rule of errors in judgment dated 29 April 1999.

CORPORATIONS — Duty of Administrator of a deed of company arrangement ("DCA") to act impartially between creditors — Position of post DCA creditors who would get nothing if distribution to other creditors made under DCA — Termination of deed to prevent such distribution — Standing of DCA administrator to apply for termination of deed — Suspension of orders to terminate DCA and winding-up to enable pre-DCA creditors to make submissions.

Corporations Law.; Setting aside a statutory demand. ; No matters of principle.

Family Law [133]- Adoption- Aunt applicant- Immigration status of child a factor- Adoption order made

ENVIRONMENTAL LAW - Statutory protection - Motorway construction - Validity of decisions of determining authorities in contravention of Part 5 of Environmental Planning and Assessment Act 1979 - Duty to consider environmental impact of "activities" - Meaning and scope of "modification" - Requirement of further environmental impact statement - Principles of natural justice and procedural fairness - Requirement of specificity and finality

EQUAL OPPORTUNITY TRIBUNAL - complaints of physical impairment/disability discrimination - dismissed - appeal to judge on point of law - further appeal to Court of Appeal - whether Tribunal a specified tribunal for purposes of Supreme Court Act - whether matter at issue of value more than $100,000 - leave required - whether Tribunal entitled to act on parties' agreement that one complaint could not be maintained even if wrong - was entitled - whether Tribunal applied test required by Anti Discriminatioin Act to other complaint - reasons of Tribunal unclear - could not be seen what it had done - necessary findings not made - (by majority) leave to appeal granted and appeal allowed - remitted to Tribunal to be dealt with according to law.

Disputed agreement to settle; motor vehicle accident

Murder; maliciously wound with intent to do grievous bodily harm; diminished responsibility; provocation

Absence negligence in driver - Pedestrian seated on median strip on Pacific Highway at midnight.

DISTRICT COURT - judgment debt - Registrar's order for payment by instalments - judge declines to rescind order - whether disretion that should be payment by instalments miscarried - no error of principle shown - leave to appeal refused.

Motion for contempt

EQUITY [54] - Undue influence - Effect on third parties - Bank relying on guarantee of wife obtained by actual undue influence of husband; EVIDENCE [139] - Burden of proof and sufficiency of weight of evidence - Onus of proof - Whether untrue evidence on part of plaintiff assists defendant