Lavin
v Toppi (HCA) - guarantee - sureties entitled to recover
contribution from co-sureties despite creditor’s covenant not to sue
co-sureties - appeal dismissed
(I B) |
Ashton
v Pratt (NSWCA) - contract - no binding legal relations between
escort and late Richard Pratt - appeal dismissed
(I B) |
Attorney
General of NSW v Homeland Community Ltd (NSWCA) - trusts -
company did not hold property on charitable trust
(B) |
Stewart
v Ackland (ACTCA) - negligence - student injured performing
backward somersault on jumping pillow on farm –
occupiers of farm who conducted amusement park business liable - appeal
dismissed
(I) |
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 (I B)
[From Benchmark 17 February 2015] |
Ashton
v Pratt
[2015] NSWCA 12
Court of Appeal of New South Wales
Bathurst CJ; McColl & Meagher JJA
Contract - appellant provided deceased with
escort services - in 2003 appellant and
deceased had conversations in which he stated he would pay appellant certain
allowances, give her a car and set up trust for each of her children - primary
judge found conversations not intended to create legal relations, that contract
if made it was void against public policy, that executor not estopped from
denying conversations were legally binding, and that any
binding obligations had been released - appellant’s children joined proceedings
seeking to enforce term in conversations to create trust - held: parties did
not intend to create legal relations and - estoppel claim against executor
failed - correspondence constituted an accord and satisfaction - 2005 document
effective to release deceased from appellant’s claims - appeal dismissed.
Ashton (I B)
[From Benchmark 18 February 2015] |
Attorney
General of NSW v Homeland Community Ltd [2015] NSWCA 15
Court of Appeal of New South
Wales
Macfarlan & Meagher JJA;
Sackville AJA
Trusts - Attorney General of
NSW sought declaration that respondent company held property upon a charitable
trust for purposes identified in deed - primary judge dismissed proceedings -
Attorney General appealed - held: primary judge did not err in permitting
company to withdraw concession that it did not contest validity of charitable
trust and to amend defence so as to withdraw admission it was bound by a trust
- finding that company bound by trust required finding that it took transfer to
it with notice that trustees intended it to hold property on trust - primary judge
did not err in declining to make that finding - appellant’s application to
adduce further evidence refused - no significant prospect a different outcome
would have ensued - appeal dismissed.
Attorney General of NSW (B)
[From Benchmark 19 February 2015] |
Stewart
v Ackland [2015]
ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers
of farm on which they conducted business involving amusement park - respondent
university student injured when performing aerial backward somersault on
jumping pillow owned by owner/occupiers - trial judge found owner/occupiers
liable for respondent’s injuries - held: trial judge correctly decided activity
in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was
not obvious - open to trial judge to
find breach of duty by appellants and that causation established - appeal
dismissed.
Stewart (I)
[From Benchmark 17 February 2015] |
Song
of the Witches: “Double, double toil and trouble”
By
William Shakespeare
(from
Macbeth)
Double,
double toil and trouble;
Fire
burn and caldron bubble.
Fillet
of a fenny snake,
In
the caldron boil and bake;
Eye
of newt and toe of frog,
Wool
of bat and tongue of dog,
Adder's
fork and blind-worm's sting,
Lizard's
leg and howlet's wing,
For
a charm of powerful trouble,
Like
a hell-broth boil and bubble.
Double,
double toil and trouble;
Fire
burn and caldron bubble.
Cool
it with a baboon's blood,
Then
the charm is firm and good.
William
Shakespeare
|