| National Australia
Bank Ltd, in the matter of Esteban (former Bankrupt) v State of New South Wales (FCA) - bankruptcy -
disclaimer of onerous property - doctrine of escheat - mortgagee granted orders
for sale of property |
| Allianz v Vitale (NSWSC) - freezing
orders - bankruptcy - existing orders continued in support of claim over funds
- funds to be paid into court |
| Perpetual Trustee
Company Ltd v Bowie (NSWSC) - real property - loan agreement - possession - no unjust contract
- no breach of duty by lender |
| Assad v Eliana
Construction & Developing Group Pty Ltd (NSWSC) - contract - joint venture - inadequate
reasons for conclusion that there was no agreement as to terms of settlement
agreement - rehearing |
| Prodger v Prodger (No.
2) (NSWSC) - real
property - leave to lodge further caveat refused - interlocutory injunction
granted |
| Craig v Craig (WASC) - succession -
widow of deceased refused leave to bring family provision application out of
time |
| Summaries With Link (Five Minute Read) |
National
Australia Bank Ltd, in the matter of Esteban (former Bankrupt) v State of New
South Wales
[2015] FCA 289
Federal Court of Australia
Flick J
Bankruptcy - bank applied pursuant to s133(9)
Bankruptcy Act 1966 (Cth) for order for
sale of parcel of land in respect to which it was mortgagee - bank also sought that
an account be given of proceeds of sale and any surplus money be paid into
Court - bank was granted mortgage over that land in 2005 by mortgagor - in 2007
caveat lodged on property by company - mortgagor made bankrupt in 2008 and
discharged from bankruptcy in 2011 pursuant - in 2014 trustee gave bank notice
of its disclaimer of land as “onerous property” pursuant to s 133(1) -
disclaimer of onerous property - doctrine of escheat - held: orders sought by
bank made subject to minor revisions.
National
|
Allianz
v Vitale [2015]
NSWSC 352
Supreme Court of New South Wales
Slattery J
Freezing orders - Allianz sought interim
preservation orders in support of proprietary claim over funds that respondent company
held in bank account - Allianz sought to continue restraints against company
dealing with funds or non-proprietary freezing order - judgment debtor had become
bankrupt and caused funds to be transferred to company which he controlled - company
submitted Court should not place any restraint on its use of funds - held: company
was exercising power of disposition over assets of judgment debtor and in position
of control or influence concerning those assets - r25.14(5) Uniform Civil Procedure Rules 2005 (NSW)
satisfied - Allianz entitled to freezing order - Court continued all existing
orders - . respondent ordered to pay into Court balance of money which judgment
debtor paid to company.
Allianz
|
Perpetual
Trustee Company Ltd v Bowie
[2015] NSWSC 328
Supreme Court of New South Wales
Ball J
Real property - mortgage - unjust contract -
negligence - Perpetual sought to recover money owed by defendant under loan agreement
- Perpetual also sought order for possession of land owned by defendant over
which it held mortgage to secure loan - defendant sought relief under Contracts Review Act 1980 (NSW) or
damages on basis Perpetual breached duty of care in advancing loan - held:
defendant exercised informed choice to enter agreements - agreements not unjust
- bank did not owe defendant duty of care prudently to assess whether or not to
grant loan and enter mortgage - negligence case failed - judgment for
Perpetual.
Perpetual
|
Assad
v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53
Court of Appeal of Victoria
Redlich, Redlich & McLeish JJA
Contract - joint venture - fiduciary duties -
trial judge declared joint venture existed between parties for purchase and development
of property - appellant did not challenge declaration but sought to appeal from
orders - appellant claimed trial judge erred by failing to give adequate reasons
for rejecting claim that parties made settlement agreement, by failing to find
parties made settlement agreement on certain terms, and by failing to make
orders with respect to counterclaim - evidence concerning settlement agreement
- held: ground of appeal based on inadequacy of reasons upheld - notice of
contention alleging fiduciary duties owed by appellant to respondent dismissed
- matter remitted for rehearing.
Assad
|
Prodger
v Prodger (No. 2)
[2015] NSWSC 339
Supreme Court of New South Wales
Slattery J
Real property - caveat - plaintiff and sought
leave under s74O Real Property Act 1900
(NSW) to lodge further caveat over property owned by second defendant - held:
second defendant had benefit of indefeasibility of title - plaintiff’s caveat lodged
after protection under s43A was in place - leave to lodge further caveat
refused - it was possible plaintiff might have personal equities against second
defendant which would allow her to set aside sale of property against him - interlocutory
injunction granted against registered proprietor dealing with property if plaintiff
provided undertaking as to damages.
Prodger
|
Craig
v Craig
[2015] WASC 109
Supreme Court of Western Australia
Mitchell J
Succession - plaintiff was widow of deceased
- plaintiff sought leave to file application under s7(1) Family Provision Act 1972 (WA) out of time - whether arguable case
- delay - plaintiff’s financial resources - contribution to estate - financial
independence during marriage - held: plaintiff did not have an arguable case -
Will did not fail to make adequate provision for plaintiff’s proper maintenance
- justice of case did not requires that plaintiff
have leave to file application out of time - application dismissed.
Craig
|
