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

Banking

Wednesday, 15 October 2014
Executive Summary (One Minute Read)
Ho v Fordyce (ex parte) (NSWSC) - solicitors' costs - contention of false creation of costs agreements - Anton Pillar order granted
In the Matter of the Will and Estate of Peers (VSC) - wills and estates - executor entitled to reimbursement for repair property costs - taxation not justified
Weipa Hire Pty Ltd v Commonwealth of Australia (QSC) - pleadings - failure to disclose reasonable cause of action - statement of claim struck out - leave to replead
Sims v Jooste [No 2] (WASC) - defamation - failure to prove publication of words in internet chat room to third party - action dismissed
Summaries With Link (Five Minute Read)
Ho v Fordyce (ex parte) [2014] NSWSC 1404
Supreme Court of New South Wales
Rein J
Equity - solicitor commenced proceedings for assessment of costs - clients asserted there were no costs agreements between them and the solicitor - clients sought order similar to Anton Pillar order to obtain access to and make of copies of material on solicitor's computer - clients were concerned that if they sought discovery in the normal manner solicitor may be able to alter or destroy evidence as to date of creation of various costs agreements - held: Court not satisfied there had been false creation of documents but there was some evidence to support the contention - for client to have to present normal application for discovery could act to clients' disadvantage forensically - ambit of information sought was narrow – proposed orders specifically detailed what was required of recipients - consequences of orders would cause little or no prejudice to solicitor if there had been no recent creation - Anton Pillar order made.
Ho
In the Matter of the Will and Estate of Peers [2014] VSC 500
Supreme Court of Victoria
Daly AsJ
Wills and estates - executor sought determination whether she was entitled to be indemnified from estate for costs of repair to property, and whether she was justified in issuing Summons for Taxation - whether co-executor entitled to act unilaterally - benefit to estate of expenses incurred - prospects of success of proposed proceeding - potential for litigation to deplete estate's assets - held: Court not satisfied issue of Summons for Taxation was justified - repair costs had benefited estate - executor entitled to be reimbursed for repair costs to extent she had not already been indemnified by others.
In the Matter of the Will and Estate of Peers
Weipa Hire Pty Ltd v Commonwealth of Australia [2014] QSC 254
Supreme Court of Queensland
Henry J
Pleadings - contract - plaintiff was lessee of hospital which it used to operate barracks - plaintiff entered written agreement for defendant to use part of premises for payment - plaintiff claimed it was not paid fees by defendant for continued use of premises beyond conclusion of agreement - plaintiff made claims in contract, quantum meruit and for mesne profits - defendant contended plaintiff's statement of claim disclosed no reasonable cause of action and should be struck out pursuant to r171 Uniform Civil Procedure Rules 1999 (Qld) - held: pleading failed to disclose reasonable cause of action in respect of any of its three claims - statement of claim struck out with leave to replead.
Weipa Hire Pty Ltd
Sims v Jooste [No 2] [2014] WASC 373
Supreme Court of Western Australia
K Martin J
Defamation - self-represented plaintiff claimed he was defamed by defendant by words appearing in internet chat forum - plaintiff had previously been executive director of company - words complained of concerned reckless disregard for shareholders' interests - publication - justification defence - s184(2) Corporations Act 2001 (Cth) - held: plaintiff did not establish that words complained had been read and understood by at least one other person - establishing publication was essential ingredient of a cause of action in defamation against defendant - need for plaintiff to show publication of words to third person other than himself was clearly explained to plaintiff - plaintiff did not establish publication of the words - action dismissed.
Sims