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


Tuesday, 2 December 2014

Executive Summary (One Minute Read)
Eatts v Gundy (QCA) - succession - intestacy - claim for family provision based on parent/child relationship in Aboriginal tradition struck out
GAU v GAV (QCA) - Wills -authorisation of alteration of Will of testatrix who had lost testamentary capacity
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (WASC) - contract - mining and magnetite export operation - transfer of Environmental Approval - contractual construction
Summaries With Link (Five Minute Read)
Eatts v Gundy [2014] QCA 309
Court of Appeal of Queensland
Muir & Fraser JJA; Martin J
Succession - intestacy - family provision - deceased died intestate - appellant was administrator and parent of deceased - respondent was biological son of deceased’s sister - respondent argued he was surviving child of deceased pursuant to Succession Act 1981 (Qld) and sought declaration he take whole estate - primary judge dismissed appellant’s application to strike out respondent’s originating application - child - s41(1) - parent/child relationship in Aboriginal tradition - held: putting the evidence at its highest for respondent that he was in parent/child relationship with deceased according to Aboriginal tradition, claims must fail upon correct construction of statutory provisions - appellant did not have more than a fanciful prospect of success - appeal allowed - application struck out.
GAU v GAV [2014] QCA 308
Court of Appeal of Queensland
Muir, Gotterson & Morrison JJA
Wills and estates - testamentary capacity - testatrix and appellant were married - son married respondent - testatrix made Will after son and respondent were married  in 1998 - will made gifts to respondent - testatrix lost testamentary capacity - son and respondent separated - appellant sought to amend Will by codicil pursuant to s21 Succession Act 1981 (Qld) - primary judge found testatrix would have made proposed codicil if she had testamentary capacity but refused leave for appellant to apply for order under s21 - operation of s24(e) - constraint on granting leave - held: finding by learned primary judge with respect to s24(e) was legally flawed - flaw infected refusal of leave to apply for an order under s 21 for authorisation of the making of proposed codicil - appeal allowed - decision to refuse leave set aside - authorisation of proposed alteration of Will by codicil would be in interests of testatrix because it would facilitate taking of step that she herself would most likely take were she able to do so.
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444
Supreme Court of Western Australia
Edelman J
Contract - construction of contract - parties were project proponents of magnetite mining and export operation - essential issue in dispute concerned whether contracts by which Sino Iron and Korean Steel (Citic parties) became involved with project required Mineralogy to transfer Mineralogy's status as 'proponent' of Ministerial Statements to Citic parties - Mineralogy refused to take any steps to transfer proponent status to Citic parties -  meaning of contractual clause concerning transfer of Environmental Approval from Mineralogy to Citic parties - held: Citic parties’ construction of clause accepted - clause meant what it said - Mineralogy must transfer Environmental Approval to Sino Iron in accordance with earlier agreements and as benefits may apply to project - construction was consistent with words of clause, with legislative requirements, and with other contractual instruments - it was legally and commercially workable - relief granted.
Sino Iron Pty Ltd