| Lavin
v Toppi (HCA) - guarantee - sureties entitled to recover
contribution from co-sureties despite creditor’s covenant not to sue
co-sureties - appeal dismissed
|
| Falkingham
v Peninsula Kingswood Country Golf Club (VSCA) - corporations -
oppressive conduct - laches - acquiescence - delay - appeal dismissed
|
| James
as Administrator of ZYL LTD (WASC) - corporations -
resolution appointing administrator without statutory minimum number of
directors - appointment confirmed
|
| Docking
v Schwarzkopf (SASC) - Wills - deceased lacked testamentary
capacity to make 2007 Will - orders pronouncing force and validity of 1989 Will
|
| Summaries With Link (Five Minute Read) |
Lavin
v Toppi
[2015] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Gageler &
Keane JJ
Guarantee - contribution in equity - bank
consolidated loans into loan to company - parties were guarantors of loan -
bank made demands on guarantors - demand not met - bank sued guarantors -
appellants and bank entered deed of release and settlement - bank covenanted not to sue appellants if
first appellant paid minor portion of debt - first appellant paid portion - respondents
paid remaining debt - respondents claimed contribution from appellants in
respect of payment in excess of their proportionate share of debt - coordinate
liabilities - held: Court of Appeal of New South Wales correct to hold bank’s
covenant not to sue did not extinguish appellants’ liability under guarantee -
respondents’ entitlement in equity to contribution from time parties were
called upon to satisfy guarantee could not be defeated by bank giving appellants
covenant - appeal dismissed.
Lavin
|
Falkingham v Peninsula
Kingswood Country Golf Club
[2015] VSCA 16
Court
of Appeal of Victoria
Warren
CJ; Whelan & Beach JJA
Corporations
- oppression - members of golf club passed ordinary resolution directing and
empowering board of directors to give effect to merger of their club with
another club - appellant member of golf club sought relief and declarations under
oppression provisions of Corporations Act
2001 (Cth) - trial judge found board exercised its power to admit new
members for purpose other than that for which power had been conferred and that
the conduct was oppressive - Court however refused relief and dismissed
proceeding because of laches, acquiescence and delay - ss232 & 233 - held: parties
accepted that decision on laches, acquiescence and delay was a discretionary
judgment - appellant failed to establish error to overturn judgment - trial
judge correct in finding board exercised its power for purpose other than that
for which it was conferred by the Constitution - appeal dismissed.
Falkingham
|
James
as Administrator of ZYL LTD
[2015] WASC 57
Supreme Court of Western Australia
Master Sanderson
Corporations - plaintiff appointed
administrator of company by resolution of company pursuant to s436A Corporations Act 2001 (Cth) - plaintiff
sought orders addressing uncertainty he considered existed in relation to
validity of resolution and appointment - ss201A, 447A, 447C, 1311 & 1312 -
requisite number of directors under s201A(2) - held: Court satisfied there was
breach of s201A(2) - it was arguable resolution passed was invalid - pt 5.3A of
the Act operated to effect that notwithstanding non-compliance with s201A(2)
plaintiff was validly appointed as administrator of company pursuant to s436A -
directors had acted bona fide - no-one
was prejudiced by decision - appointment of administrator confirmed.
James
|
Docking
v Schwarzkopf [2015]
SASC 18
Supreme Court of South Australia
Stanley J
Wills - deceased died in 2009 - in 1989 deceased made Will appointing plaintiff
as the sole executor of estate - in 2007 deceased made document purporting to
be Will revoking all former Wills and testamentary dispositions - document
appointed defendant sole executor - plaintiff sought to have 1989 will admitted
to probate - testamentary capacity - held: 2007 executed in accordance with Wills Act 1936 (SA) - there was evidence
establishing deceased lacked testamentary capacity at time of making 2007 Will
- there was presumption arising from proper execution of 1989 will that the
deceased had testamentary capacity at that time - orders pronouncing force and
validity of 1989 Will.
Docking
|
