A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Monday, 2 March 2015

Executive Summary (One Minute Read)
El Sayed v El Hawach (NSWCA) - trusts and trustees - no breach of duty in appointment of solicitor as appointer under deed
Rahgeb Naguib Awadallah v Hymix Australia Pty Ltd (NSWSC) - caveat - equitable mortgage over property arising from guarantee - caveat removed on condition of payment of debt
Issa v Issa (NSWSC) - limitation of actions - no clear case for determining limitations questions in advance of hearing - summary dismissal of second cross-claim dismissed
O’Brien v Hall (VSC) - testator’s family maintenance claim - no grant of representation in Victoria - Court had no jurisdiction - claim dismissed
Mead v Lemon (WASC) - succession - large estate - family provision order made in favour of daughter of deceased
Summaries With Link (Five Minute Read)
El Sayed v El Hawach [2015] NSWCA 26
Court of Appeal of New South Wales
Beazley P; Gleeson & Leeming JJA
Trusts and trustees - company was trustee of discretionary trust - deed establishing trust created by accountant who was original appointer  - first respondent and second respondent director of company were named beneficiaries - solicitor and first appellant were eligible beneficiaries - appointor empowered to remove or appoint trustee or appoint person as appointor - by 2011 deed, accountant resigned as appointor and appointed solicitor as appointer - solicitor had acted as solicitor for trustee from time to time - by 2012 deed, solicitor replaced himself as appointor with first appellant and replaced company with second appellant as trustee - critical issue was whether 2011 deed ought to be set aside for breach of fiduciary duty - primary judge found there was a breach of fiduciary duty, set aside appointment of the new appointor under 2011 deed, but confirmed efficacy of original appointor’s resignation, with the result 2012 deed was ineffective - held: conclusion of primary judge on standing of appellants to bring proceedings upheld -  finding of breach of fiduciary duty set aside - 2011 deed was entirely effective - 2012 deed was wholly ineffective.
El Sayed
Rahgeb Naguib Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117
Supreme Court of New South Wales
McDougall J
Real property - caveat - equitable mortgage over property arising from guarantee - plaintiff was director of company - defendant claimed it supplied concrete to company on basis it held director’s guarantee - defendant claimed payment of amount in District Court from director - director claimed guarantee abandoned or terminated - caveat lodged against plaintiff’s title as joint tenant in parcels of real estate - one parcel of real estate had been sold -  plaintiff sought removal of caveat - validity of caveat - balance of convenience - held: caveat did not on its face go beyond rights asserted arising under guarantee - sufficient justice would be done to parties if caveat withdrawn in relation to property which had been sold on condition that amount be paid into Court to abide outcome of debt recovery proceedings in District Court.
Rahgeb Naguib Awadallah
Issa v Issa [2015] NSWSC 112
Supreme Court of New South Wales
White J
Limitation of actions - negligence - contract - equitable compensation - unconscionable conduct - cross-defendants to second cross-claim sought order that cross-claim be summarily dismissed on ground claims were barred by s14 Limitation Act 1969 (NSW) - cross-defendants also contended that, insofar as cross-claimant sought equitable relief, the claim was barred by principle that equity would apply Limitation Act by analogy - whether Limitations Act did not apply because alleged wrongful acts precluded bringing of proceedings - whether equity had discretion not to apply Limitation Act - held: cross-defendants did not establish that this was a clear case in which limitation questions should be decided in advance of hearing - summary dismissal refused.
O’Brien v Hall [2015] VSC 52
Supreme Court of Victoria
Derham AsJ
Testator’s family maintenance - daughter of deceased from his first marriage sought order for maintenance on basis Will failed to make such provision - there was no grant of probate of deceased’s Will in Victoria - grant of probate was in United Kingdom - defendant second wife of deceased was executrix and universal beneficiary - defendant sought order dismissing proceeding and judgment on basis originating motion did not disclose a cause of action, or summary judgment on basis claim had no real prospect of success - held: Court had no jurisdiction in relation to application until there was grant of representation in Victoria - implicit in s91 Administration and Probate Act 1958 (Vic) that there must be grant of representation for there to be jurisdiction in Court to entertain application - appropriate to dismiss proceeding and leave plaintiff to pursue rights to compel defendant to obtain grant of representation in Victoria.
Mead v Lemon [2015] WASC 71
Supreme Court of Western Australia
Master Sanderson
Succession - family provision - large estate - plaintiff was daughter of deceased - plaintiff claimed she had not been left with adequate provision from estate of deceased - size of deceased’s estate - entitlement to bring claim - daughter’s entitlement under Will - actuarial evidence - wise and just testator - community expectation - held: Will of deceased did not make adequate provision for daughter - there was real prospect daughter might get nothing - daughter awarded amount which would not fall outside reasonable expectation of most members of the community.