| Ell,
Richard Austin v Ell, Stephen Maxwell (NSWCA) - Wills – testator
intended to release debt unconditionally under Will |
| Ramsay
Health Care Australia Pty Ltd v Compton (NSWSC) – contract -
signatures on signing pages bound party to guarantee – plea of non est factum
failed |
| Philip
v JPM Developments Pty Ltd (NSWSC) – easements – substantial
interference with right of carriageway by proposed development works – declaration
and injunction |
| Australian
Vintage Ltd v Belvino Investments No. 2 Pty Ltd (as trustee of the McGuigan
Simeon Trust ABN 76965280510) (NSWSC) – commercial lease
of vineyard – expert determination clause - expert’s determination not set
aside |
| Campbelltown
City Council v WSN Environmental Solutions Pty Ltd (NSWSC)
– contract – dispute resolution regime – declaration that party not entitled to
refer dispute to expert refused |
| Chan
v First Strategic Development Corporation Ltd (in liq) (QCA)
– corporations – factual findings open to primary judge– appeal dismissed |
| Simmons
v Love (WASC) – contract for sale of land – buyers’ claim for
damages for late settlement dismissed |
| Summaries With Link (Five Minute Read) |
Ell, Richard Austin v Ell,
Stephen Maxwell
[2015] NSWCA 38
Court
of Appeal of New South Wales
Basten,
Ward & Gleeson JJA
Wills
- contract - estoppel - testator made will in 2002 - left estate to his four
children in equal shares - clause of
Will purported to release appellant from liability for money owed to testator on the security of appellant’s house -
security not provided - testator died in 2007 - siblings signed agreement in
which debt reduced on condition appellant pay amount into managed fund - appellant
did not do so - siblings terminated agreement in 2009 - estate distributed on
assumption full debt owed - primary judge found Will did not release debt which
was payable to estate once agreement terminated - held: testator intended to
release debt unconditionally - clause effectively released debt even though no
security provided - neither agreement nor circumstances of signing revealed
parties shared common assumption debt owed - respondents could not rely on
agreement to estop appellant from arguing release of debt under Will - appeal
allowed.
Ell, Richard Austin
|
Ramsay Health Care Australia
Pty Ltd v Compton
[2015] NSWSC 163
Supreme
Court of New South Wales
Hammerschlag
J
Contract
– non est factum – plaintiff sued second defendant pursuant to guarantee and
indemnity – plaintiff alleged second defendant bound himself as guarantor in
terms of written agreement – second defendant appended signature to document
headed Signing page – plaintiff later signed an electronically transmitted copy
of same page bearing signature – second defendant appended signature to a
second Signing page in same form – plaintiff claimed that by signatures second
defendant bound himself to guarantee - second defendant denied signature on
Signing pages were assent as Signing pages did not pertain to guarantee but
were signed as stand-alone documents intended to signify assent to different
proposed guarantee under which he had no personal liability to plaintiff –
held: objectively viewed both Signing pages were assent by second defendant to
guarantee – plea of non est factum failed – second defendant’s mind went with
his signature - judgment for plaintiff.
Ramsay Health Care Australia Pty Ltd
|
Philip v JPM Developments
Pty Ltd [2015]
NSWSC 145
Supreme
Court of New South Wales
Sackar
J
Real
property – easements – plaintiffs sought declaration that defendant owner of
servient tenement would contravene their right of carriageway by carrying out
work under development consent – plaintiff also sought to restrain defendant
from carrying out any work – held: Court satisfied that there would be
substantial interference to plaintiffs’ rights of carriageway if proposed work
went ahead – it was appropriate to grant declaratory and injunctive relief.
Philip
|
Australian Vintage Limited v
Belvino Investments No. 2 Pty Ltd (as trustee of the McGuigan Simeon Trust ABN
76965280510)
[2015] NSWSC 168
Supreme
Court of New South Wales
Rein
J
Commercial
lease – expert determination clause - plaintiffs leased vineyard from first
defendant – clause of lease provided means of dealing with external events
resulting in significant crop loss and which permitted plaintiffs to terminate
lease or require remedial work if threshold reached – clause included
possibility of appointment of expert to determine relevant matters – plaintiffs
claimed expert misunderstood task and sought declaration that expert determine
matters afresh – whether Court could intervene – estoppel - held: even if Court
persuaded it could set aside expert’s determination if it was satisfied
expert’s interpretation incorrect, Court would not be persuaded it was
appropriate to do so – relief refused.
Australian Vintage Limited
|
Campbelltown City Council v
WSN Environmental Solutions Pty Ltd
[2015] NSWSC 155
Supreme
Court of New South Wales
Sackar
J
Contract
– dispute resolution clause – Councils entered contract with waste management
services company – dispute concerned interaction between two dispute resolution
clauses – Councils sought declaration defendant was not entitled to refer to an
expert a dispute concerning whether it should be compensated for an alleged
reasonably unforeseeable and unforeseen event – construction of contract –
dispute resolution regime – jurisdiction of expert and questions of
commerciality - held: each dispute
resolution regime was to be self-contained - construction proposed by defendant
to be preferred – Councils refused relief sought – appropriate to grant relief
sought by waste management services company.
Campbelltown City Council
|
Chan
v First Strategic Development Corporation Ltd (in liq) [2015] QCA 28
Court of Appeal of Queensland
Gotterson & Morrison JJA; Boddice J
Corporations – Court gave judgment
against appellants and ordered them to pay company sums pursuant to s588M(2) Corporations Act 2001 (Cth) – appellants
challenged three central factual findings which led to primary judge’s
conclusion – finding that company was insolvent at times certain debts were
incurred – finding that first and second
appellant directors and third appellant had reasonable grounds for suspecting
company insolvent - findings that second and third appellants were unable to
establish defences under ss588H(2) or 588H(4) – held: findings open to primary
judge and supported by evidence – appeal dismissed.
Chan
|
Simmons
v Love
[2015] WASC 79
Supreme Court of Western Australia
Beech J
Contract for sale of land – buyers
initially sued for specific performance of contract for sale of land – seller initially
defended action on basis contract unenforceable because it contravened Planning and Development Act 2005 (WA)
and that general condition not fulfilled - parties settled on sale and purchase
transaction but were in dispute over amount claimed by buyers as damages for
late settlement, costs of action and costs of earlier proceedings brought by
buyers – held: on date of
settlement buyers were not ready,
willing and able to settle on contract in accordance with its terms – buyers’
claim dismissed – sellers’ counterclaim also dismissed.
Simmons
|
