| 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) |
| Tran v
Pu (FCA)
- bankruptcy - review of sequestration order - deed of settlement failure to
carry out de novo hearing - appeal
allowed - matter remitted
(B G) |
| 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) |
| White
v Johnston (NSWCA) - assault and battery - dentist’s
treatment was not assault on patient - matter remitted confined to alternative
negligence claim
(I) |
| Re RB,
a protected estate family settlement (NSWSC) - approval of family
settlement including statutory Will relating to protected person
(B) |
| Dimarti
v Dimarti (NSWSC) – contract of compromise – no unconscionable
conduct or unjust contract – application to set aside contract of compromise
dismissed
(B) |
| Traivelog
Pty Ltd v Electrometals Technologies Ltd (Subject to a Deed of Company
Arrangement) (QSC) - corporations - voluntary administration
- deed of company arrangement not set aside
(B) |
| West
Coast Council v Coverdale (No 2) (TASFC) - real property -
Valuer-General obliged to value lands subject of marine farming leases - appeal
allowed
(I G) |
| 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] |
Tran v Pu [2015] FCA 97
Federal
Court of Australia
Beach
J
Bankruptcy
- appellant’s estate sequestrated pursuant to Registrar’s order - sequestration
order made on creditor’s petition filed by respondent - application for review
of sequestration order dismissed by Federal Circuit Court judge - primary judge
held deed of settlement was a bar to application for review - held: no private
contractual bar could foreclose proper application of s52 Bankruptcy Act 1966 (Cth) - primary judge did not engage in task of
a rehearing de novo or engage in task
required under s52 - appeal allowed - matter remitted.
Tran (B G)
[From Benchmark 24 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] |
White v Johnston [2015] NSWCA 18
Court
of Appeal of New South Wales
Barrett,
Emmett & Leeming JJA
Assault
and battery - respondent patient alleged appellant dentist’s treatment
constituted assault and was negligently performed - primary judge found dentist
had committed assault and battery on patient - dentist contended evidence did
not establish absence of therapeutic purpose in treatments she performed, that primary
judge erred in relying on evidence admitted to demonstrate tendency to charge
for services not performed, and in waiving notice requirement - appellant also
contended exemplary damages were excessive - held: evidence did not establish
absence of therapeutic purpose - awarding of damages in error - decision to
admit evidence relating to malpractice overturned - matter remitted to District
Court confined to alternative claim in negligence.
White (I)
[From Benchmark 20 February 2015] |
Re RB, a protected estate
family settlement
[2015] NSWSC 70
Supreme
Court of New South Wales
Lindsay
J
Wills
- succession - protected estate - application for approval of family settlement
concerning estate of defendant - defendant was a protected person under s38 NSW
Trustee and Guardianship Act 2009 (NSW) - statutory Will - family provision releases - lost capacity case - exercise of
protective jurisdiction - management and administration of property - held: orders
made for approval of family settlement including statutory Will relating to protected
person.
Re RB,
a protected estate family settlement (B)
[From Benchmark 20 February 2015] |
Dimarti v Dimarti [2015] NSWSC 97
Supreme
Court of New South Wales
Lindsay
J
Contract
of compromise – defendant sought orders that consent orders and underlying
agreement for compromise be set aside because they were procured by plaintiff’s
unconscionable conduct within meaning of ss20, 21 and 22 of the Australian
Consumer Law – defendant also contended contract for compromise was an unjust
contract within meaning of s7 Contracts
Review Act 1980 (NSW) – defendant contended his medical condition operated against
full participation in processes leading to entry of consent orders - held: no
unconscionable conduct – no unjust contract - defendant gave fully informed
consent to contract of compromise he entered and orders made by Court – motion
dismissed.
Dimarti (B)
[From Benchmark 24 February 2015] |
Traivelog Pty Ltd v
Electrometals Technologies Ltd (Subject to a Deed of Company Arrangement) [2015] QSC 27
Supreme
Court of Queensland
P
McMurdo J
Corporations
- voluntary administration - creditors sought to set aside deed of company
arrangement executed by first respondent company - reg 5.3A.07 Corporations Regulations 2001 (Cth) -
ss445D, 447A & 513B Corporations Act
2001 (Cth) - delay - held: no ground to set aside DOCA established under
s445D(1)(a) & (b) - Court not persuaded DOCA unfairly prejudicial or unfairly
discriminatory - application heard more than five months after execution of
DOCA, during which time the company continued to trade with consequence those
who became creditors, contractors or investors in that period would be likely to
be prejudiced from orders sought - application dismissed.
Traivelog
Pty Ltd (B)
[From Benchmark 23 February 2015] |
West Coast Council v Coverdale
(No 2)
[2015] TASFC 1
Full
Court of the Supreme Court of Tasmania
Tennent,
Escort & Pearce JJ
Real
property - Council sought declaration that Valuer-General obliged to keep and
maintain valuation rolls and to provide valuation lists to Council including
particulars of ownership and values of lands subject of marine farm leases -
leases
were granted in respect of areas in Macquarie Harbour pursuant to Marine Farming Planning Act 1995 (Tas) -
Council claimed primary judge erred in failing to determine grant of each of
the marine farming leases created an interest in land which was rateable
pursuant to section 87(1) Local
Government Act 1993 (Tas) - statutory construction - held (by majority): seabed
and waters of Macquarie Harbour were Crown land for the purposes of Crown Lands Act 1976 (Tas) - they were Crown lands that are liable to be rated
because they were not exempt - Valuer-General under duty to value lands the
subject of the leases - appeal allowed.
West
Coast Council (I G)
[From Benchmark 23 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] |
| CRIMINAL SELECTION |
| Executive Summary |
|
Ke Qin
Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (dfg) Pty (121) Ltd (FCA) (NSWCA) – costs – Calderbank offer – offer to consent to
dismiss abuse of process motion – indemnity costs granted
|
| Summaries With Link |
Ke Qin
Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd
(in liq)
[2015] NSWCA 22
Court of Appeal of New South Wales
Barrett, Gleeson & Leeming JJA
Costs - Court allowed appeals in separate
proceedings brought by parties - Court also dismissed respondents’ notice of
motion contending that application for leave to appeal proceedings was abuse of
process - Court set aside orders against applicant and first respondents and remitted
proceedings – respondents ordered to pay active parties’ costs of appellate
proceedings with costs of proceedings at first instance to be determined on
remitter – parties sought variations of costs orders - applicants sought
indemnity costs based on Calderbank letter – respondents sought more favourable
order on basis appeals succeeded on point not run at first instance – held:
unreasonable of respondent not to accept offer to discontinue abuse of process
motion with no order for costs – applicants entitled to indemnity costs -
essential point that summary judgment should be entered was advanced at first
instance – much of time and expense incurred on appeal attributable to new
points respondents raised unsuccessfully – respondents did not raise any new
matter not already addressed – orders varied.
Ke Qin Ren
|
