Banking Wednesday, 11 March 2015 View in browser

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


Executive Summary (One Minute Read)
Salmon v Osmond (NSWCA) - succession - costs - offers of compromise - family provision order extending to provision of own home
Chandler v Coulson (NSWSC) - succession - family provision order in favour of de facto partner of deceased
New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Ltd (NSWSC) - contract - guarantee - misnomer of beneficiary of bank guarantee corrected
Mitchell v Moore (NSWSC) - pleadings - statement of claim disclosed no reasonable cause of action - claim struck out - leave to replead
Idameneo (No 123) Pty Ltd v Suszko (SASC) - pleadings - contract - application to file and serve amended defence, set-off and counterclaim
Summaries With Link (Five Minute Read)
Salmon v Osmond [2015] NSWCA 42
Court of Appeal of New South Wales
Beazley P; McColl & Gleeson JJA
Succession - deceased survived by wife and children - made provision for wife and five of his seven children - two of deceased’s daughters sought additional provision under s59 Succession Act 2006 (NSW) - primary judge dismissed one daughter’s claim and allowed provision for other daughter in form of legacy - executors appealed - testator’s wishes - additional evidence - updated financial positions of parties - costs at first instance and on appeal - effect of offers of compromise - held: provision for daughter disproportionately high in context of son’s competing claim - primary judge erred in finding that proper provision to daughter required ensuring she had her own house - trial judge erred in finding offers of compromise to daughter whose claim was dismissed were not genuine - appeal allowed - provision made for daughter in form of legacy - costs orders made.
Chandler v Coulson [2015] NSWSC 172
Supreme Court of New South Wales
Pembroke J
Succession - plaintiff claimed family provision order out of deceased’s estate pursuant to s59 Succession Act 2006 (NSW) - plaintiff contended he was eligible to make claim because he was in a de facto relationship with deceased at time of her death - freedom of testamentary disposition - held: Court satisfied plaintiff and deceased living in de facto marriage at time of her death - wise and just testatrix in deceased’s position would have made provision for plaintiff in Will to reflect care and support he provided, particularly when deceased was in ill health - family provision order granted.
New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Ltd [2015] NSWSC 176
Supreme Court of New South Wales
Kunc J
Contract - plaintiff Corporation claimed it was intended beneficiary of two guarantees issued by bank at request of first defendant customer - bank cross-claimed against customer and other cross-defendants in respect of any liability bank might have to corporation under guarantees - guarantees issued in favour of nonexistent “New South Wales Land & Housing Department” - cross-defendants accepted that, if bank liable to corporation, then their clients liable to indemnify bank - whether bank liable to plaintiff under the guarantees - misnomer and absurdity - held: on its proper construction “New South Wales Land & Housing Department Trading As Housing NSW ABN 45754121940” in guarantees and Indemnity meant the Corporation - Corporation had complied with guarantees - bank liable to Corporation - cross-defendants liable to bank.
New South Wales Land and Housing Corporation
Mitchell v Moore [2015] NSWSC 180
Supreme Court of New South Wales
Wilson J
Pleadings - plaintiff filed statement of claim seeking declaration asserted debt amounted to charge on real property owned by defendant, pending repayment of claimed amount - defendant sought to have claim struck out as disclosing no reasonable cause of action and having tendency to cause embarrassment - held: statement of claim failed to identify reasonable cause of action - plaintiff had pleaded a conclusion of law, not material facts from which conclusion drawn - there was at least some basis that plaintiff had triable case - statement of claim struck out with leave to file and serve further statement of claim.
Idameneo (No 123) Pty Ltd v Suszko [2015] SASC 29
Supreme Court of South Australia
Stanley J
Pleadings - dispute arising out of sale deed and practitioner contract entered between plaintiff company and defendant medical practitioner - defendant sought to file and serve amended defence, set-off and counterclaim - substantial delay - watered costs - failure of defendant to explain reasons for delay - held: Court satisfied that, if amendment permitted, trial would have to be adjourned - adjournment would result in significant costs being incurred - adjournment would prejudice plaintiff and have repercussions for other litigants - application refused.
Idameneo (No 123) Pty Ltd