Daily Banking: Thursday, 10 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

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Executive Summary (One Minute Read)
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd (NSWCA) - contract - proceedings arising from termination of agreements for provision of investment and asset management services - appeal allowed in part - cross-appeal dismissed
Pyrmont Point Pty Ltd v Westacott (NSWCA) - leases and tenancies - retail lease - Retail Leases Act 1994 (NSW) did not apply to lease - appeal dismissed
Ferella v Official Trustee in Bankruptcy (NSWCA) - costs - dismissal of appeal against appointment of trustees for sale of properties - indemnity costs awarded in Official Trustee's favour
Collis Finance Pty Ltd v Hertford (No. 2) (NSWSC) - real property - possession - no defence to claim - plaintiff free to move for default judgment
Nitro Circus Touring Australia Pty Ltd v Ilaria Lenzoni (NSWSC) - service - contract - service on defendant in Italy - Italian Authority's certificate of service substantially complied with approved form - plaintiff entitled to default judgment
Investec v Butterss (VSC) - banking - facility agreement - assignment - plaintiff entitled to judgment against first defendant for payment of amount owing pursuant to guarantee
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1. This Benchmark Television broadcast is with The Hon. Ian Coleman SC on de facto relationships in family law with Dasith Vithanage.

2. This is one hour five minutes of gold. There is no better commentator on family law than Ian Coleman. Everyone should watch – all the family.

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

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Benchmark Television
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The Hon. Ian Coleman SC on de facto relationships in family law with Dasith Vithanage
This is one hour five minutes of gold. There is no better commentator on family law than Ian Coleman. Everyone should watch – all the family.
Summaries With Link (Five Minute Read)
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28
Court of Appeal of New South Wales
Macfarlan, Ward & Gleeson JJA
Contract - insurance - appellant provided investment and asset management services to respondent - appellant contended agreements' early termination entitled it to retain funds held on trust for respondent for repayment of early termination fees and accrued fees - primary judge held that while there was a statutory right of rescission in respondent's favour, respondent had lost statutory right by not exercising it within a reasonable time and by affirming agreements - primary judge also found agreements validly terminated for default and appellant entitled only to certain accrued fees - appellant challenged orders in relation to pre-judgment interest and costs - respondent contended it had not lost right to rescind agreements - held: appeal dismissed except in relation to operation of indemnity clause to release costs concerning certain issues - cross-appeal dismissed.
Woodlawn
Pyrmont Point Pty Ltd v Westacott [2016] NSWCA 33
Court of Appeal of New South Wales
Ward & Leeming JJA; Emmett AJA
Leases and tenancies - retail lease - statutory interpretation - applicant was lessee of bottle shop - respondent was lessor of premises - applicant acquired leasehold interest in premises by assignment from company - prior to exercising option to renew applicant sought appointment of specialist retail valuer pursuant to s 32 Retail Leases Act 1994 (NSW) - after applicant exercised option application amended to similar application under s31 - respondent denied lease governed by Retail Leases Act and Administrative Decisions Tribunal had no jurisdiction to appoint valuer - jurisdictional issue determined in respondent's favour - applicant sought to appeal from primary judge's decision to refuse leave to appeal from Appeal Panel's decision - whether Retail Leases Act applied to lease - construction of s6(1)(b) - held: no error in primary judge's conclusion that Retail Leases Act did not apply to lease - leave to appeal granted - appeal dismissed.
Pyrmont
Ferella v Official Trustee in Bankruptcy [2016] NSWCA 27
Court of Appeal of New South Wales
Bergin CJ in Eq, Tobias & Emmett AJJA
Costs - Court dismissed appellants' appeal from order appointing trustees for sale of properties made pursuant to s66G Conveyancing Act 1919 (NSW) - Court decided appellants' arguments hopeless and should not have been made - whether indemnity costs warranted in Official Trustee's favour - held: appellants' contentions in opposition to indemnity costs orders had no more merit than arguments advanced on appeal - indemnity costs ordered.
Ferella
Collis Finance Pty Ltd v Hertford (No. 2) [2016] NSWSC 192
Supreme Court of New South Wales
Davies J
Real property - possession - default in making interest repayments - defence had been struck out in proceedings - further “Defence” had been handed to Court in proceedings - held: “Defence” sought to be relied upon did not disclose defence to claim - defendants had no defence to claim for possession of land - plaintiff free to move for default judgment.
Collis
Nitro Circus Touring Australia Pty Ltd v Ilaria Lenzoni [2016] NSWSC 178
Supreme Court of New South Wales
Hammerschlag J
Service - default judgment - contract - plaintiff sued defendant for amount owing under agreement in which plaintiff granted defendant right to present and promote show - plaintiff sought default judgment - defendant resided in Italy - whether defendant validly served with process by post effected by Italian Authority - Arts 3 - 6 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - s80 Interpretation Act 1987 (NSW) - s17 Civil Procedure Act 2005 (NSW) - Pt 6 r 6.9(1), Pt 11 rr 11A.1, 11A.3(1), 11A.4(1), (2), 11A.5(1), 11A.6(1), (2), (3), 11A.8, 11A.10 Uniform Civil Procedure Rules 2005 (NSW) - held: certificate of service provided by Italian Authority diverged from approved form but substantially complied with it - process validly served - plaintiff entitled to default judgment.
Nitro Circus
Investec v Butterss [2016] VSC 80
Supreme Court of Victoria
Digby J
Banking - facility agreement - plaintiff sought recovery from first defendant under guarantee and indemnity - novation of facility agreement - assignment of facility agreement, novated facility agreement and guarantee from company to plaintiff - held: plaintiff's demand made to first defendant in accordance with guarantee was properly made - first defendant had failed to make payment in accordance with demand - judgment for plaintiff.
Investec