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


Tuesday, 11 November 2014
Executive Summary (One Minute Read)
Re Dion Investments Pty Ltd (NSWCA) - trusts and trustees - family trust - method of accounting for income and gains - open to Court to confer limited powers on trustee
Goater v Commonwealth Bank of Australia (NSWCA) - mortgage - default judgment set aside after writ of possession entered
The Estate of Leaney (NSWSC) - Wills and estates - informal document which revoked earlier Will admitted to probate
Summaries With Link (Five Minute Read)
Re Dion Investments Pty Ltd [2014] NSWCA 367
Court of Appeal of New South Wales
Beazley P; Barrett & Gleeson JJA
Trusts and trustees - trustee of family trust applied under s81(1) Trustee Act 1925 (NSW) for order conferring on trustee power to amend trust deed, including by adding provision enabling trustee to amend trust instrument as it thought fit - primary judge refused to make order sought but made order conferring certain specific and narrow powers on trustee - held: primary judge correctly held that an order empowering a trustee to amend the trust instrument was not authorised by s81(1) - alteration of terms of a trust was not a transaction that was expedient be undertaken in the management or administration of trust property - however, it was open to Court to confer particular and limited power concerning method by which trustee could account for income and gains - ability to use that method of accounting had been shown to be expedient for management or administration of trust property - trustee should be allowed to bring in short minutes of orders conferring such particular and limited powers - appeal allowed in part.
Re Dion Investments Pty Ltd
Goater v Commonwealth Bank of Australia [2014] NSWCA 382
Court of Appeal of New South Wales
Basten & Gleeson JJA; Sackville AJA
Contract - loan agreement - borrowers defaulted on their mortgage to Bank - borrowers lodged complaint with Financial Ombudsman Service - complaint terminated by agreement between borrowers and Bank - borrowers required to comply with schedule of repayments - Bank to be informed about payments to local council - Bank sent notice to borrowers that they had breached agreement and that proceedings were to be commenced - borrowers did not immediately respond or seek advice resulting in failure to file defence - default judgment entered - writ of possession issued and executed - borrowers evicted - borrowers sought to set aside the default judgment - application rejected as there was no power to set aside judgment once writ of possession executed - held: Court had power to set aside default judgment when orders had taken effect - default judgment should be set aside - breach of agreement by the borrowers relied on by bank was non-payment of water rates, which was arguably not an obligation under the agreement - in any case, there was evidence rates had been paid - bank did not comply with its procedural obligations - delay by borrowers insufficient to deny relief where the borrowers had reasonably arguable defences - default judgment set aside.
The Estate of Leaney [2014] NSWSC 1562
Supreme Court of New South Wales
Nicholas AJ
Wills and estates - deceased died in 2013 - deceased made formal Will in 1989 - sometime between April 2011 and August 2012, deceased prepared unsigned, handwritten document which was found by the plaintiff shortly after deceased had died - plaintiff sought grant of probate of document - held: Court satisfied that deceased intended the document to convey his testamentary intentions and to operate as his Will, and thereby to revoke the Will of 1989 - document admitted to probate.
The Estate of Leaney