Cases and authorities

Imputations - capacity - form - difference in substance - parody - matter for jury

Conveyancing [187]; Torrens system; Caveats; Whether undertaking as to damages by caveator required if caveat extended

Corporations - winding up - stay of proceedings. Held: an arbitrator's award, published after liquidation, is not a nullity by reason only of the liquidation and the absence of leave to proceed.

Family Provision and Maintenance. Fully distributed estate. Application to designate property as notional estate. S27(1)(b) and (c) of Family Provision Act. Whether the substantial justice and merits or any other matters prevented such an order.; Notice of intended distribution published before distribution of estate. Consideration of s35 of the Family Provision Act and whether the Executor has a personal liability if estate distributed prior to the 18 months within which an application may be made.

Adjournment application - late discovery - claim for special damages - amendment of cross-claim - s 10 Fair Trading Act 1987

Defamation; Damages; Aggravated damages

No question of principle involved

Practice and Procedure - Leave to amend Summons - Plaintiff's claims against defendants alleged to have jointly carried on business of manufacturing, packaging and supplying of heart pacemaker products - Whether pleading provided sufficient statement of case made against each defendant - Plaintiff claimed entitlement to pierce corporate veil.

Criminal Appeal - s.6(1) & (2) - role of jury - whether verdicts unreasonable or cannot be supported having regard to the evidence.

CRIMINAL LAW - Sentencing - Crown Appeal - Armed robbery in company - General requirement for custodial sentence - exceptions.

DEFAMATION - whether imputation ambiguous - true innuendo - whether need to prove objective truth of extrinsic facts - Defamation Act 1974 - s7A - appeals from interlocutory decisions

Appeal against Magistrate's decision; Sufficiency of Stated Case

costs

Criminal Law - indictment - application for permanent stay of proceedings refused - whether leave to appeal should be granted

Criminal Law - Sentencing - manslaughter - whether sentence imposed exceeded range of discretion of sentencing judge.

DAMAGES - Award of general damages - Review of a discretionary decision - Disproportionate to nature and consequence of injuries and disabilities - Compensatory damages; DAMAGES - Award for economic loss - Precluded by injury from further desired work - Future economic loss - Global award

ENVIRONMENTAL LAW - Use by Council of land for waste depot - Breach of Environmental Planning and Assessment Act 1979 - No consent granted by Council before commencement of operation of Depot - What constitutes development consent - Consent not recorded in appropriate register - Whether absence of a record is evidence for absence of consent; EVIDENCE - Burden of proof - Civil standard - Onus of proof - Civil onus - Negative proposition - Evidential burden carried by defendant; EVIDENCE - subpoena - proper construction of

CONTRACT - Building work - repudiation - attempt to rely on alternative justification; CONTRACT - unwritten variations - when restitutionary claim open; CONTRACT - measure of damages - builder wrongfully excluded

Motor vehicle accident; negligence ; pedestrian emerging onto road from between stationary cars in outside lane; driver failing to slow; whether negligence; contributory negligence of pedestrian

MOTOR VEHICLE ACCIDENT - verdict for absent defendant - dispute as to vehicle involved - whether verdict was demonstrably unsafe

negligence; unsafe system and place of work; negligence not established; credibility of plaintiff and his witnesses

Strike out statement of claim

Imputations - capacity

Family Law. Application under Defacto Relationships Act 1984 for adjustment of parties' property interests. Order for adjustment made. No matter of principle.

PROCEDURE [93], [95] - Procedure under Supreme Court Rules - Pleadings - General - Purpose of particulars - Whether claim adequately particularised - Whether enlargement of particulars ought be allowed during trial - Summary disposal - General principles - Summary dismissal of part of claim refused.

contempt of court; approaching/communicating with witnesses against court order

Extension of time - Limitation of Actions Act 1958, Victoria

PROCEDURE — Referee — Requirement to accord procedural fairness — Referee considered relevant material of potential significance from receiver’s files before report delivered for confirmation of conclusions reached without advising parties — No opportunity to parties to adduce other evidence or make submissions — Inappropriate for referee to give evidence as to nature of material under Hardiman principle — No necessity to give reasons beyond those given — Relevant principles.

Corporations - companies - winding up - application to set aside winding up order - evidence required

Corporations - companies - winding up - application to terminate winding up - evidence required

CRIMINAL LAW; application for leave to appeal against severity of sentence ; conspiracy to import not less than the commercial quantity of cocaine; proportionality of sentence with sentences imposed on co-conspirators

INSURANCE - Policy - Personal accident and sickness - Exclusions - Injury caused directly or indirectly or resulting from insured "engaging in or taking part in ... professional sporting activities".

Appeal against decision of costs assessor

Procedure [558]; Costs; Defendants appearing by one set of counsel and solicitors; One successful one not; Appropriate costs order; Consideration of situation where plaintiff wins on some counts only of its claim

Costs - defamation - verdict less than provided under Rule - appropriateness of matter in the Supreme Court - discretion to award costs - costs of whole proceedings or issue by issue - whole costs or part - conduct of parties - complex issues of principle

Corporations [33]; Oppression; Home unit company; 4 units; Two owned by oppressor; Remedy; Corporations Law s 246AA; Corporations [126]; Meetings; Requirement that they be properly convened and notified; Non voting chairman has no casting vote

TRUST - Constructive trust - Circumstances in which claimant to assets of insolvent company able to claim priority over general creditors by means of proprietary claim; TRUST - Moneys paid by debt factoring company A to or for benefit of debt factoring company B - Payments made by employee W carrying out accountancy services for both companies - Payments made without knowledge or authority of directors of either company - Partial repayments made by company B prior to discovery by directors of either company of W’s misconduct-Liquidation of company B-Company B claim to avoid partial repayments made as uncommercial transactions and/or as preferential payments-Company A seeks to outflank insolvency provisions by suggested application of equitable doctrines including constructive trust declarations; TRUST - Tracing-Whether identifiable trust property ; TRUST - Constructive trust-General principles - Equity of transaction must shape measure of relief; EQUITY - Restitution - When does obligation to make restitution arise? - Is obligation to make restitution, a post-liquidation obligation? - Prerequisites of an equitable proprietary claim-Relationship between doctrine of constructive trust and tracing - Insolvent defendant not knowing the facts which form the basis of restitutionary claim and is insolvent; EQUITY - Remedies flexibly applied in modern commercial context to be adapted to commercial realities; NOTICE - Imputing of knowledge or notice - Knowledge imputed to company through agency - Knowledge imputed through directing mind and will of company - Knowledge acquired by officer of one company not imputed to another company unless common officer has duty imposed upon him to communicate that knowledge to the other company and a duty imposed on him by the company alleged to be affected by the notice, to receive the notice; COMPANIES - Fiduciary,statutory and common law duties of directors - Attribution of knowledge through common director or employee; BANKRUPTCY - Proprietary claims and their priority in insolvency-Constructive trust cuts across ordinary principles as to pari passu ranking of claims in insolvency administrations - Does property subjected to insolvency administration include property impressed with a constructive trust?; BANKRUPTCY - Insolvent and uncommercial transactions - Priority in respect of post liquidation liabilities-Is obligation to make restitution provable in a winding up - set-offs - Running accounts - Integral part of continuing business relationship,; CORPORATIONS LAW ; Part 5.7B , Part 6 Division 1A; s 9 Definitions, of‘transaction","party"; ss232(2), 232(4), 232(6), 289, 553(1), 555(1), 556(1)(a), 588E(3), 588E(4), 588FA, 588FB, 588FC, 588FE2(2)(a) and (b), 588FE(3), 588FF(1), 588FF(1)(c), 588FG(2), 1307, 1317HD

NEGLIGENCE - solicitors and barrister - extent of duties of care - standards of care that of experts in the relevant field - whether breach of duties of care; FAIR TRADING ACT 1987 - misleading conduct - solicitors and barrister - negligence in advising - whether misleading conduct or involvement in client's misleading conduct; CORPORATIONS LAW - issue of prospectus - causing or approving issue - solicitors and barrister - negligence in advising - misleading prospectus - whether causing or approving issue; DAMAGES - wasted expenditure - expenditure to demutualise company - injunction to restrain - if solicitors and barrister negligent - expenditure wasted - whether recoverable without regard to whether demutualisation would have failed anyway - McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 and Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 considered.

NEGLIGENCE - Whether there was failure by council properly to maintain playing field and by soccer associations to inspect playing surface prior to match.

Declaration sought that building approval had lapsed by reason of non-compliance with s 315 of the Local Government Act 1993 (NSW) - application to restrain breach of Act - whether building approval granted under the Local Government Act 1919 continued in force by virtue of transitional provisions under the 1993 Act - extent of Land and Environment Court's jurisdiction under s 16 (1A), s 20 (1)(d) and s 20 (2) of the Land and Environment Court Act 1979 (NSW) - proceedings brought under s 674 of the Local Government Act 1993

Application challenging the validity of a development consent - draft Local Environmental Plan (LEP) designed to amend industrial zoning in Interim Development Order so as to permit 'warehouse/retailing' activities - s 65 certificate - making of LEP but in an amended form - redrafting of clause - whether in granting consent the Council failed to consider a requirement contained in the redrafted clause

Negligence - duty of care - breach of duty - causation.

Law Reform - Home Building Act 1989 - persons to be protected

ESTOPPEL [6] - Former adjudication - Judgment Inter Partes - Res Judicata distinguished from Issue Estopel and Anshun Doctrine - Generally; GUARANTEE AND INDEMNITY [33] - Rights of surety - Against creditor - Subrogation to security held by creditor - When arising; MORTGAGES [87] - Costs - Mortgage stipulates solicitor/client basis - Costs payable unless unreasonably incurred.

Family Provision; Claims by two adult daughters and by widow; Abandonment of claim by one daughter; Proceedings of widow are out of time; Deceased left an infant daughter (now aged nine) by his second marriage; Will appears to have been prepared by the deceased personally; Will provides for an "adequate amount" to cover the costs of school education of his infant daughter; Effect of that provision upon benefits given by will to each of his three children; Competing claims of adult daughter and of widow upon bounty of deceased; Financial and material circumstances of respective plaintiffs

Stated Case; Application to Strike Out Statement of Claim.