Cases and authorities

PROCEDURE – Amendment – proposed late amendment of summons for injunction enforcing restraint of trade and damages for breach to add claim for account of profits – where no prior allegation of fiduciary obligation – where no evidence of any profits – where amendment would necessitate adjournment of trial – where hearing expedition on defendant’s application where defendant subject to interlocutory injunction

Appeal - Costs Review Panel - cross claim, solicitor's hourly rates, disbursements

EVIDENCE - Subpoenas - setting aside - relevance - apparent or potential relevance

Negligence - Foreseeable risk of injury - Liability of a statutory authority - Shirt calculus - Duty of care - Breach - Causation - Personal responsibility - Contributory negligence.

Appeal - Local Court Magistrate: return of deposit

RECEIVERS - court-appointed receiver - receiver applying for his own discharge

Costs on summons and statement of claim where plaintiff failed to establish constructive or resulting trust - awarded 50% to the defendant/cross-claimant who failed to establish financial contributions alleged by her - costs of cross-claim under Property Relationships Act - awarded 80% to defendant/cross-claimant on the basis of substantive but not complete success.

PRACTICE & PROCEDURE - civil penalty proceeding - effect of "penalty privilege" on conduct of trial - plaintiff's application for adjournment to review voluminous evidence filed and served by defendants - possibility of evidence in reply - discretionary considerations

application for leave to appeal against severity of sentence - robbery in company - robbery armed with offensive weapon - pleas of guilty - imprisonment for eight years, non-parole period of six years - correct age and date of birth of applicant - prospects of rehabilitation - prior criminal record - previous offences dealt with in the Children's Court - recording of conviction in the Children's Court - whether trial judge erred in taking into account matters dealt with in Children's Court - evidence of other offences admissible if crime-free period of two years has not existed - offence of robbery in company aggravated by co-offender's possession of offensive weapon - joint criminal liability - sentencing judge intended to vary statutory ratio between head sentence and non-parole period - not put into effect in aggregate sentence - whether sentences manifestly excessive - accumulation of sentences -

Appeal against conviction - fresh evidence - tests of admissibility - significance - Longman direction - necessary elements - change in Crown case during cross-examination of appellant - whether should have been permitted - dates of alleged offences - whether essence of charges - whether departure from particulars

Insurance - income protection policy - special condition reduced benefits if disability caused or contributed to by "disease or disorder" of eye - whether disorder included result of being struck in eye by piece of wood - approach to construction - from parties' use of "disorder" and purpose of special condition, did include it. D

PROCEDURE – costs – application for indemnity costs of trial – Calderbank offer – principles

CORPORATIONS - winding up - preference recovered from Commissioner of Taxation - Commissioner of Taxation seeks indemnity from Director - consideration of whether Commissioner entitled to indemnity for Commissioner's own costs of defending preference recovery action

SUCCESSION – WILLS PROBATE AND ADMINISTRATION – construction and effect of testamentary dispositions – beneficiary witnessing will – persons who would take on intestacy unable to be located – strong case for making order under section 13(2) Wills, Probate and Administration Act 1898 – whether appropriate to make orders ex parte – PROCEDURE – Supreme Court procedure – parties – whether appropriate to make order under section 13 Wills, Probate and Administration Act ex parte

CORPORATIONS - application to set aside creditor's statutory demand - plaintiff fails to establish genuine dispute based on counterclaims for auction services, when overwhelming evidence indicates that services were provided by another entity - no issue of general principle

PRACTICE AND PROCEDURE - transfer of proceedings under Corporations legislation from Supreme Court to Family Court of Australia - proceedings substantially resolved, except for costs - relevant considerations - no issue of general principle.

appeal against conviction - maliciously inflicting grievous bodily harm - assault occasioning actual bodily harm - admission of evidence over objection - statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995 - maker of statement unavailable to give evidence - objection taken on grounds of late notice and discretionary factors - no separate objection to content of evidence - whole of statement admitted - whether trial judge erred in admitting statement - - whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement - directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible - hearsay provisions of the Evidence Act - exceptions to the hearsay rule - identification of previous representation - identification of what fact was intended to be asserted by previous representation - relevant evidence - evidence of out of court representation by one person cannot be given by out of court representation of another person - evidence of previous representations inadmissible - effect of admission of inadmissible evidence of previous representation - Criminal Appeal Rules, rule 4 - whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal - Criminal Procedure Act s68, s289 - appellant waived right to committal hearing - proviso to s6 of the Criminal Appeal Act - admission of the inadmissible evidence would and should have had no significance in verdict - evidence properly admitted proves beyond reasonable doubt guilt of the offence

CRIMINAL LAW: Application for leave to appeal against sentence - three counts of receiving - matters on Form 1 - large amount of property - offender in his fifties - prior good character - whether full time custodial sentence appropriate

COSTS- Solicitors' liability for costs- Appeal without reasonable prospects of success- Sophisticated clients- Not clear whether appeal was a result of clients' or solicitors' action.

SUCCESSION [166]- Wills- Construction and effect of testamentary dispositions- Direction that X may remove and dispose of any item in house- Whether gift to X of valuable stamp collection located in the deceased's home. WORDS & PHRASES- "Dispose".

Corporations. Application to set aside statutory demand under s45G of the Corporations Act. No matters of principle.

CORPORATIONS - creditor's statutory demand - genuine dispute as to existence of debt - financing by "buy and sell plan" including set-off arrangements - PRACTICE & PROCEDURE - indemnity costs

VENDOR AND PURCHASER - termination of contract through default of purchaser - order for forfeiture of the deposit

Separate trial applicaiton - substituted indictment

CORPORATIONS - company limited by guarantee - not for profit - distribution of surplus assets on winding up

Crown appeal - Importation of commercial quantity of MDMA - extent of discount for plea of guilty and assistance - objective criminality of respondent erroneously assessed as equal to partner in criminal enterprise

Criminal Law - Summing up - directions on intent to possess narcotic goods - whether inadequate.

Criminal Law - Appeal - New evidence on sentence appeal - extent of assistance to police and conditions of custody.

FEDERAL JURISDICTION – tort committed in Queensland – action in New South Wales – whether provisions of Queensland Act procedural or substantive - PRIVATE INTERNATIONAL LAW – tort committed in Queensland – action in New South Wales – whether provisions of Queensland Act procedural or substantive - PRIVATE INTERNATIONAL LAW – distinction between substance and procedure – determined by law of forum – provisions which do not prevent cause of action accruing and time running procedural - D

Appeal decision of Local Court Magistrate - misrepresentation - FTA

Further interim payment - s 82 CPA

[PLEADINGS] - Requirements in Commercial List - Application for leave to file Amended Cross-Summons - Opposed on various grounds

PRACTICE & PROCEDURE - subpoena to produce - payment of expenses of compliance - whether court should order advance payment under Uniform Civil Procedure Rules

Contract. Agreement for sale of a series of childcare centres at prices calculated by use of a formula. Whether condition precedent to the particular childcare centre has been fulfilled. Question of construction of agreement. Held condition fulfilled.

Corporations Law. Application to set aside statutory demand under s459G of Corporations Act. Consideration of defects in the affidavit and whether there was an abuse of process. Demand not set aside as offsetting claim not quantified.

CORPORATIONS - winding up application - application for adjournment - adjournment refused - no matter of principle

CRIMINAL LAW – SENTENCE – guilty plea - supplying a prohibited drug (heroin) - supplying a prohibited drug (heroin) on an ongoing basis - possessing a pistol without being authorised to do so - goods in custody – totality principle – whether manifestly excessive

CRIMINAL LAW – CONVICTION APPEAL - aggravated indecent assault - inciting a person above the age of sixteen years to commit an act of indecency – evidence and directions on issue of consent – whether the verdicts were unreasonable – SENTENCE – whether excessive – where sentencing judge failed to apply s 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences - whether sentencing judge failed to give effect to the finding of special circumstances

Tort - Negligence - What was a reasonable response by lessors to location of pump - Lessors' duty of care to lessee - one acre rural property - pump located in dangerous location - whether location of pump constituted defect - whether content of duty of care required lessors to move pump to avoid foreseeable risk of injury - damages - claims for gratuitous attendant care and future economic loss sections 13 and 15 Civil Liability Act 2002.

Building and Construction Industry - Challenge to Adjudication Determination - General principles examined-Significance of considering position of Adjudicator - Task of Adjudicator to determine the claimant’s entitlement within the framework of the dispute propounded by the parties - Significance of provision preventing a respondent from including in the adjudication response, any reasons for withholding payment unless those reasons have already been included in payment schedule - Whether evidence should be permitted on an application to set aside a determination - Limited evidence permitted on the voire dire on the basis of a reserved ruling as to admissibility - Evidence disallowed - Adjudicator determining that amount of the progress payment to be paid by the respondent was in excess of the amount finally claimed by the claimant as remaining outstanding - Extant power of adjudicator to correct the determination - Judgment entered in District Court for adjudicated amount in breach of s.25(3) of Act in face of supporting affidavit indicating that part of adjudicated amount had been paid - Slip rule power of District Court - Jurisdiction of Supreme Court to restrain claimant from enforcing District Court Judgment save to extend of unpaid portion of adjudicated amount

COSTS – Dispute resolved without hearing on merits – No capitulation – Whether any party had substantial success - Whether plaintiff acted reasonably in bringing proceedings – Whether any party was almost certain to have succeeded – Whether orders as to costs are appropriate. - TRUSTS AND TRUSTEES – Judgment creditor claiming to be subrogated to trustee’s right of indemnity out of trust assets – Whether creditor could have priority over purchasers of trust assets from trustee.

WILLS - contest between will made in 1961 and wills made in 1992 and 1995 - claimed agreement to leave property by will in exchange for assistance in the home - 1992 will leaving everything to person giving assistance - subsequent wills made on same day in 1995 in English and Polish also giving property to that person - questions of execution and testamentary capacity in respect of 1992 and 1995 documents - subsidiary issues of undue influence and lack of knowledge and approval - original of 1995 Polish will not produced - loss explained - no presumption of revocation

CONVEYANCING - Land Titles under the Torrens System - Easements - Right of way created in 1901 from one set of stables to another on lands under single ownership - Right with or without horses, carts, carriages or waggons laden or unladen to go pass and repass - Land rising six metres from street frontage to bottom of retaining wall and ten metres to top of fence on retaining wall between servient tenement and rear of dominant tenement - Ramp to rear of servient tenement dilapidated - Right of way turning 90 degrees at rear of servient tenement - Reasonably even but sloping towards road frontage - No wheel marks - Driveway proposed at 20% to conform with council requirements - Expert evidence motor vehicles could not negotiate 90 degree turn without encroaching on other land of servient or dominant tenement - Likelihood that 40% landscaping requirement could not be met if off street parking provided on either dominant tenement - Driveway requiring fill one metre high at rear of residence on servient tenement continuing down right of way three feet from main entrance to residence - Other dominant tenement requiring driveway to be as low as possible at rear of residence on servient tenement for off street parking hence preventing balance of driveway achieving 20% gradient - Whether right of way should be construed as excluding vehicular traffic - Whether obsolete, impediment to reasonable use of servient tenement, abandoned or no substantial injury to dominant tenements if extinguished

EQUITY [1]- Rule that party cannot rely on their own wrong to gain an advantage- Scope of rule- GUARANTEE & INDEMNITY [37]- Loan agreement for purpose of investment- Indemnity agreement in respect of loan- Construction. TRADE & COMMERCE [79]- Misrepresentation- Insufficient nexus between representation and plaintiff- Lack of reliance on misrepresentation.

Criminal Practice & Procedure - Application under s108(3) Evidence Act 1995 - cross examination of witness in support of alibi by Crown - implication that reconstruction or evidence the result of suggestion - application for leave s108(3) Evidence Act to tender prior consistent evidence - whether statement addresses credibility attack - whether leave under s192(2) should be given.