| 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) |
| Jingalong
Pty Ltd v Todd (NSWCA) - contract - settlement agreement was
binding and enforceable - causes of action discharged
(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) |
| White
v Johnston (NSWCA) - assault and battery - dentist’s
treatment was not assault on patient - matter remitted confined to alternative
negligence claim
(I) |
| Herrick
v Knowles (No 2) (NSWSC) - costs of non-party - exceptional
circumstances - plaintiff to pay non-party’s costs
(I) |
| Re RB,
a protected estate family settlement (NSWSC) - approval of family
settlement including statutory Will relating to protected person
(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] |
Jingalong Pty Ltd v Todd [2015] NSWCA 7
Court
of Appeal of New South Wales
Meagher
& Leeming JJA; Sackville AJA
Contract
- parties to proceedings in Equity Division entered settlement agreement -
appellant relied on settlement agreement to defeat claims made by respondents
to hold interests in land of which appellant was registered proprietor -
primary judge held settlement agreement was an accord executory which was unenforceable - since respondent had
chosen not to comply with agreement, there had been no performance - primary
judge found agreement did not prevent respondents from pursuing causes of
action, and upheld their claims - construction of agreement - held: settlement
agreement was binding and enforceable - claims made by respondents had been
satisfied - appeal allowed.
Jingalong
Pty Ltd (I B)
[From Benchmark 16 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] |
Herrick v Knowles (No 2) [2015] NSWSC 54
Supreme
Court of New South Wales
Harrison
AsJ
Costs
- costs of non-party - third defendant sought order that plaintiff not be
permitted access to material produced in response to subpoena to produce issued
to doctor - plaintiff was refused access to doctor’s report - Court ordered plaintiff to pay defendants’
costs on ordinary basis - when judgment delivered, counsel for doctor did not
appear due to oversight - no application made regarding doctor’s costs - doctor
was non-party - doctor sought costs - whether
necessary for doctor to be separately represented - held: exceptional circumstances
gave rise to doctor opposing access to documents and explaining her reasons
principles set out in O’Keefe v Hayes
Knight GTO Pty Ltd [2005] FCA 1559 met - plaintiff to pay doctor’s costs.
Herrick (I)
[From Benchmark 16 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] |
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] |
