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


Wednesday, 3 December 2014

Executive Summary (One Minute Read)
First Tiffany Resource Corporation v Hill End Gold Ltd (NSWSC) - summary dismissal - failure to pay security for costs - proceedings dismissed
Michalakas v Powell (SASCFC) - corporations - leave to institute proceedings in name of company refused - appeal dismissed
Menz v Menz (SASC) - Wills - probate granted in respect of 1978 Will - 2013 handwritten document invalid
Summaries With Link (Five Minute Read)
First Tiffany Resource Corporation v Hill End Gold Ltd [2014] NSWSC 1713
Supreme Court of New South Wales
Rein J
Summary dismissal - claims over mining tenements relating to mining of gold and silver - defendant sought security for costs from plaintiff overseas resident - plaintiff failed to pay security - defendant sought dismissal of proceedings pursuant to Pt 42, r42.21(3)Uniform Civil Procedure Rules 2005(NSW) or Court’s inherent jurisdiction - prejudice - held: nothing to indicate it was likely that there was reasonable prospect plaintiff would be able to obtain funding for case - plaintiff had not ensured it had sufficient funds to bring case and to provide measure of protection to defendant should defendant be successful in resisting proceedings - Court satisfied proceedings should be dismissed - motion granted.
First Tiffany Resource Corporation
Michalakas v Powell [2014] SASCFC 132
Full Court of the Supreme Court of South Australia
Kourakis, Vanstone & Parker JJ
Corporations - Master refused application for leave to institute proceedings in name of company pursuant to s237 Corporations Act 2001 (Cth) - serious question to be tried - best interests of company - ss237(2)(c) & 237(2)(d) - Pts 2F & 1A - held: evidentiary deficits undermined appellant's contention that proposed case was viable - appellant failed to satisfy Court that proceedings would be in best interest of the company - no error by Master - Master correct to refuse leave - appeal dismissed.
Menz v Menz [2014] SASC 180
Supreme Court of South Australia
Gray J
Wills - probate - deceased left Will dated 7 July 1978 in which she appointed plaintiff husband executor and sole beneficiary of estate - divorce order made in Federal Magistrates Court in 2013 relation to marriage - divorce application discontinued following death of deceased - following death, envelope located bearing handwritten text of deceased providing deceased’s estate was to be divided between children of plaintiff and deceased - plaintiff sought grant of probate of 1978 will in solemn form and order pronouncing against the handwritten document appearing on envelope - held: in circumstances, and in regard to fact that no party had challenged validity of 1978 Will, it was appropriate to make order pronouncing for its force and validity -  divorce did not take effect - s20A Wills Act 1936 (SA) had no operation - disposition in plaintiff’s favour not revoked - handwritten writing gave rise to well-founded suspicion that document was not a valid testamentary instrument - no party had propounded the envelope as a Will - order made pronouncing against validity of envelope.