Banking Wednesday, 8 April 2015 View in browser

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


Executive Summary (One Minute Read)
Ferella v The Official Trustee in Bankruptcy (NSWCA) - stay - orders appointing trustees for sale of properties - no prospects of success on appeal - stay refused
Ersh v The Greek Orthodox Parish and Community of Burwood and District Saint Nectarios Ltd (NSWSC) - contract - bankruptcy - invalid notice for recovery of loan money - proceedings dismissed
Balcomb v Brownlee (NSWSC) - succession - family provision - settlement agreement subject to Court’s approval - declaration
Gabriele v Gabriele (VSC) - testator’s family maintenance - testatrix had responsibility to provide for plaintiff - provision order made
Netline Pty Ltd v QAV Pty Ltd [No 2] (WASC) - contract - ineffectual termination of letting and services agreement - damages to be assessed
Summaries With Link (Five Minute Read)
Ferella v The Official Trustee in Bankruptcy [2015] NSWCA 81
Court of Appeal of New South Wales
Meagher JA
Stay - bankruptcy - dispute between second appellant and Official Trustee concerning amounts to which Official Trustee was entitled for administration of bankruptcy - dispute subject of Federal Court application under s179 Bankruptcy Act 1966 (Cth) - appellants sought stay of primary judge’s orders appointing trustees for sale of properties jointly owned by first appellant and Official Trustee - appellants contended primary judge erred in not exercising discretion against making order under 66G, or in not deferring consideration of application, until delivery of judgment in Federal Court proceedings - held: appellants’ arguments could not stand with concessions made that primary judge would be justified in making order under s66G and that material before Court provided basis for making of orders sought - appeal had no realistic prospects of success - stay refused.
Ersh v The Greek Orthodox Parish and Community of Burwood and District Saint Nectarios Ltd [2015] NSWSC 331
Supreme Court of New South Wales
Bellew J
Contract - bankruptcy - plaintiff sought to recover money loaned by her to defendant  - plaintiff appealed from Magistrate’s decision in defendant’s favour - plaintiff had not disclose debt to trustee in bankruptcy - whether notice plaintiff gave seeking recovery of loan money was valid - held: debt said to be owed by defendant vested in plaintiff’s trustee upon bankruptcy - plaintiff’s discharge from bankruptcy did not revest property - plaintiff not in position to give valid notice seeking repayment of loan because debt was not hers - no error in Magistrate’s findings - proceedings dismissed.
Balcomb v Brownlee [2015] NSWSC 361
Supreme Court of New South Wales
Slattery J
Contract - plaintiff child of deceased sought family provision order out of time - executors accepted offer to settle - plaintiff sought to enforce agreement to settle - estate contended any agreement was subject to Court’s approval and not binding until approval obtained - contractual interpretation - meaning of full and final settlement in statutory context of Succession Act 2006 (NSW) - s73(1) Civil Procedure Act 2005 (NSW) - held: full and final settlement meant settlement would exhaust claim and conclude the litigation - words of agreement obliged plaintiff to approach Court and seek approval of release under s95 Succession Act -  approval not forthcoming plaintiff was not entitled to agreed funds.
Gabriele v Gabriele [2015] VSC 115
Supreme Court of Victoria
Kaye JA
Testator’s family maintenance - plaintiff and defendant were testatrix’s sons -  sole asset of estate was testatrix’s interest in home as tenant in common in equal shares with defendant - testatrix left whole of estate to defendant - plaintiff claimed  provision from estate pursuant to Pt IV Administration and Probate Act 1958 (Vic) - whether wise and just testatrix would have thought it her moral duty to make appropriate disposition favour of plaintiff - amount and extent of financial contribution made by defendant to purchase property - respective contributions of parties to testatrix’s welfare - plaintiff’s exclusion from property in period leading to testatrix’s death -  held: testatrix had responsibility to make provision for proper maintenance support of plaintiff - provision order made.
Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113
Supreme Court of Western Australia
Beech J
Contract - plaintiffs owned apartment in complex - defendant manager provided caretaking and letting services to Ascot Village - owners and manager were parties to agreement for provision of letting services by manager in respect of apartment - manager purported to terminate agreement - owners claimed notice of termination was ineffectual and sought specific performance - held: there was no implied term entitling manager to terminate agreement on reasonable notice - manager had no right to terminate agreement - specific performance not granted - damages to be assessed.