| El
Sayed v El Hawach (NSWCA) - trusts and trustees - no breach of
duty in appointment of solicitor as appointer under deed
|
| Rahgeb
Naguib Awadallah v Hymix Australia Pty Ltd (NSWSC) - caveat -
equitable mortgage over property arising from guarantee - caveat removed on
condition of payment of debt
|
| Issa
v Issa (NSWSC) - limitation of actions - no clear case for
determining limitations questions in advance of hearing - summary dismissal of
second cross-claim dismissed
|
| O’Brien
v Hall (VSC) - testator’s family maintenance claim - no grant of
representation in Victoria - Court had no jurisdiction - claim
dismissed
|
| Mead
v Lemon (WASC) - succession - large estate - family provision
order made in favour of daughter of deceased
|
| Summaries With Link (Five Minute Read) |
El Sayed v El Hawach [2015] NSWCA 26
Court
of Appeal of New South Wales
Beazley
P; Gleeson & Leeming JJA
Trusts
and trustees - company was trustee of discretionary trust - deed establishing
trust created by accountant who was original appointer - first respondent and second respondent
director of company were named beneficiaries - solicitor and first appellant
were eligible beneficiaries - appointor empowered to remove or appoint trustee
or appoint person as appointor - by 2011 deed,
accountant resigned as appointor and appointed solicitor as appointer -
solicitor had acted as solicitor for trustee from time to time - by 2012 deed,
solicitor replaced himself as appointor with first appellant and replaced
company with second appellant as trustee - critical issue was whether 2011 deed
ought to be set aside for breach of fiduciary duty - primary
judge found there was a breach of fiduciary duty, set aside appointment of the
new appointor under 2011 deed, but confirmed efficacy of original appointor’s
resignation, with the result 2012 deed was ineffective - held: conclusion of
primary judge on standing of appellants to bring proceedings upheld - finding of breach of fiduciary duty set aside
- 2011 deed was entirely effective - 2012 deed
was wholly ineffective.
El
Sayed
|
Rahgeb Naguib Awadallah v Hymix
Australia Pty Ltd
[2015] NSWSC 117
Supreme
Court of New South Wales
McDougall
J
Real
property - caveat - equitable mortgage over property arising from guarantee - plaintiff
was director of company - defendant claimed it supplied concrete to company on
basis it held director’s guarantee - defendant claimed payment of amount in
District Court from director -
director claimed guarantee abandoned or terminated - caveat lodged against
plaintiff’s title as joint tenant in parcels of real estate - one parcel of
real estate had been sold - plaintiff
sought removal of caveat - validity of caveat - balance of convenience - held: caveat
did not on its face go beyond rights asserted arising under guarantee - sufficient
justice would be done to parties if caveat withdrawn in relation to property
which had been sold on condition that amount be paid into Court to abide outcome of debt
recovery proceedings in District Court.
Rahgeb
Naguib Awadallah
|
Issa v Issa [2015] NSWSC 112
Supreme
Court of New South Wales
White
J
Limitation
of actions - negligence - contract - equitable compensation - unconscionable
conduct - cross-defendants to second cross-claim sought order that cross-claim
be summarily dismissed on ground claims were barred by s14 Limitation Act 1969 (NSW) - cross-defendants also contended that,
insofar as cross-claimant
sought equitable relief, the claim was barred by
principle that equity would apply Limitation Act by analogy - whether Limitations
Act did not apply because alleged wrongful acts precluded bringing of
proceedings - whether equity had discretion not to apply Limitation Act - held:
cross-defendants did not establish that this
was a clear case in which limitation questions should be decided in advance of
hearing - summary dismissal refused.
Issa
|
O’Brien v Hall [2015] VSC 52
Supreme
Court of Victoria
Derham
AsJ
Testator’s
family maintenance - daughter of deceased from his first marriage sought order for
maintenance on basis Will failed to
make such provision - there was no grant of probate of deceased’s Will in
Victoria - grant of probate was in United Kingdom - defendant second wife of
deceased was executrix and universal beneficiary - defendant sought order
dismissing proceeding and judgment on basis originating motion did not disclose
a cause of action, or summary judgment on basis claim had no real prospect of
success - held: Court had no jurisdiction in relation to application until
there was grant of representation in Victoria - implicit in s91 Administration and Probate Act 1958 (Vic)
that there must be grant of representation for there to be jurisdiction in
Court to entertain application - appropriate to dismiss proceeding and leave
plaintiff to pursue rights to compel defendant to obtain grant of
representation in Victoria.
O’Brien
|
Mead v Lemon [2015] WASC 71
Supreme
Court of Western Australia
Master
Sanderson
Succession
- family provision - large estate - plaintiff was daughter of deceased -
plaintiff claimed she had not been left with adequate provision from estate of
deceased - size of deceased’s estate - entitlement to bring claim - daughter’s
entitlement under Will - actuarial evidence - wise and just testator -
community expectation - held: Will of deceased did not make adequate provision
for daughter - there was real prospect daughter might get nothing - daughter
awarded amount which would not fall outside reasonable expectation of most
members of the community.
Mead
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