Daily Banking: Friday, 6 November 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Donnelly v Australia and New Zealand Banking Group Ltd (NSWCA) - summary dismissal - summons disclosed no reasonable cause of action - extension of time refused - summons seeking leave to appeal dismissed
Lowe v Lowe (No 2) (NSWSC) - succession - family provision - further provision ordered in favour of deceased’s widow by second marriage
Amaca Pty Ltd v CSR Ltd (No 2) (VSC) - interest - judgments under Wrongs Act 1958 (Vic) and in equity attracted interest under s60 - interest awarded
Barbon v Tessari (No 2) (VSC) - costs - probate - unsuccessful challenge to plaintiff’s application for grant of probate - unreasonable rejection of Calderbank offer - pursuit of hopeless case - indemnity costs awarded in plaintiff
Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous (QSC) - pleadings - guarantee - untenable cause of action - parts of statement struck out with leave to replead
Baju Henley Square P/L v Bruce (SASC) - contract for purchase of apartment off the plan - invalid notices of termination - drawing bearing notation of dimensions of apartment not of contractual effect - vendor entitled to specific performance
Summaries With Link (Five Minute Read)
Donnelly v Australia and New Zealand Banking Group Ltd [2015] NSWCA 341
Court of Appeal of New South Wales
Meagher & Gleeson JJA
Summary dismissal - loans and mortgages - possession - applicant sought extension of time for leave to appeal against dismissal of proceedings on ground no reasonable cause of action was disclosed - Banking Act 1959 (Cth) - Contracts Review Act 1980 (NSW) - s101(2)(e) Supreme Court Act 1970 (NSW) - rr13.4, 51.10 Uniform Civil Procedure Rules 2005 (NSW) - held: no error in primary judge’s conclusion that applicant’s summons disclosed no reasonable cause of action - even if no timing difficulties, leave to appeal would not be granted - notice of motion for an extension of time and the summons seeking leave to appeal dismissed.
Lowe v Lowe (No 2) [2015] NSWSC 1626
Supreme Court of New South Wales
Kunc J
Succession - family provision - plaintiff was widow of deceased by second marriage for both of them - plaintiff sought provision out of deceased’s estate under s59 Succession Act 2006 (NSW) - defendants conceded jurisdictional question whether provision not adequate for plaintiff - dispute concerned what amount of provision should be ordered - separate financial affairs - plaintiff’s financial position and needs - other interested persons - community expectation for proper provision for plaintiff’s maintenance, education or advancement in life - ss57, 58, 59, 60 - held: additional provision ordered in plaintiff’s favour in amount of $100,000.
Amaca Pty Ltd v CSR Ltd (No 2) [2015] VSC 605
Supreme Court of Victoria
Macaulay J
Interest - Court awarded contribution in plaintiff’s favour against one or both defendants - contribution awarded in two cases pursuant to Pt IV Wrongs Act 1958 (Vic) and three cases by equitable remedy on discharge of coordinate liability - appropriate calculation of interest on four of the five judgments - whether judgments attract interested under ss58 or 60 Supreme Court Act 1986 (Vic) - whether defendants had shown ‘good cause’ why Court should order interest to run only from commencement of each case’s action - whether letters sent by plaintiff before action constituted ‘demand of payment’ under s 58 - held: s58 did not apply to sums recovered under Wrongs Act or in equity - interest awarded under s60 in each case.
Barbon v Tessari (No 2) [2015] VSC 597
Supreme Court of Victoria
McMillan J
Costs - probate - defendant unsuccessfully challenged plaintiff’s application for grant of probate - plaintiff sought indemnity costs against defendant on basis of Calderbank offer - s24(1) Supreme Court Act 1986 (Vic) - held: defendant persisted in pursuing case which was hopeless - no reasonable grounds justifying challenge to validity of deceased’s will - defendant’s failure to respond to Calderbank offer was unreasonable rejection by her - indemnity costs awarded to plaintiff.
Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2015] QSC 309
Supreme Court of Queensland
Jackson J
Pleadings - fourth defendant sought to strike out parts of statement of claim as not disclosing reasonable cause of action against applicant as guarantor and indemnifier of first and second defendants - applicant submitted that on proper construction of contracts between respondent and first and second defendants no sum yet due to respondent on causes of action - applicant contended corresponding causes of action alleged by respondent against applicant must fail because obligation to pay on guarantee or indemnity had not arisen - r171 Uniform Civil Procedure Rules 1999 (Qld) - held: respondent’s claim of applicant’s liability under guarantee and indemnity depended on existence of relevant debt due and payable by first and second defendants to respondent under clause - respondent’s case so clearly untenable it could not succeed on proper construction of contract - application granted - leave to amend statement of claim granted.
Baju Henley Square P/L v Bruce [2015] SASC 169
Supreme Court of South Australia
Bampton J
Contract - defendant contracted with plaintiff to purchase apartment off plan in development - defendant commissioned internal measurement survey on scheduled settlement date and following receipt of survey served Notice of Termination on basis of alleged breach by plaintiff of Area Condition of the Contract - defendant asserted that a marketing plan drawing bearing 130 square metres notation was of contractual effect - plaintiff served Notice to Complete on defendant - defendant served second Notice of Termination alleging plaintiff’s failure to obtain development approval by contract’s satisfaction date - plaintiff sought specific performance of contract - held: neither of defendant’s notices of terminations was valid - drawing not of contractual effect - plaintiff entitled to specific performance - judgment for plaintiff - cross-claim dismissed.
Poem for Friday (Recitation here by Thomas Hellier)
I dwell in Possibility – (466)
By Emily Dickinson

I dwell in Possibility –
A fairer House than Prose –
More numerous of Windows –
Superior – for Doors –

Of Chambers as the Cedars –
Impregnable of eye –
And for an everlasting Roof
The Gambrels of the Sky –

Of Visitors – the fairest –
For Occupation – This –
The spreading wide my narrow Hands
To gather Paradise –

Emily Dickinson