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


Tuesday, 17 February 2015

Executive Summary (One Minute Read)
Lavin v Toppi (HCA) - guarantee - sureties entitled to recover contribution from co-sureties despite creditor’s covenant not to sue co-sureties - appeal dismissed
Falkingham v Peninsula Kingswood Country Golf Club (VSCA) - corporations - oppressive conduct - laches - acquiescence - delay - appeal dismissed
James as Administrator of ZYL LTD (WASC) - corporations - resolution appointing administrator without statutory minimum number of directors - appointment confirmed
Docking v Schwarzkopf (SASC) - Wills - deceased lacked testamentary capacity to make 2007 Will - orders pronouncing force and validity of 1989 Will 
Summaries With Link (Five Minute Read)
Lavin v Toppi [2015] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Gageler & Keane JJ
Guarantee - contribution in equity - bank consolidated loans into loan to company - parties were guarantors of loan - bank made demands on guarantors - demand not met - bank sued guarantors - appellants and bank entered deed of release and settlement  - bank covenanted not to sue appellants if first appellant paid minor portion of debt - first appellant paid portion - respondents paid remaining debt - respondents claimed contribution from appellants in respect of payment in excess of their proportionate share of debt - coordinate liabilities - held: Court of Appeal of New South Wales correct to hold bank’s covenant not to sue did not extinguish appellants’ liability under guarantee - respondents’ entitlement in equity to contribution from time parties were called upon to satisfy guarantee could not be defeated by bank giving appellants covenant - appeal dismissed.
Falkingham v Peninsula Kingswood Country Golf Club [2015] VSCA 16
Court of Appeal of Victoria
Warren CJ; Whelan & Beach JJA
Corporations - oppression - members of golf club passed ordinary resolution directing and empowering board of directors to give effect to merger of their club with another club - appellant member of golf club sought relief and declarations under oppression provisions of Corporations Act 2001 (Cth) - trial judge found board exercised its power to admit new members for purpose other than that for which power had been conferred and that the conduct was oppressive - Court however refused relief and dismissed proceeding because of laches, acquiescence and delay - ss232 & 233 - held: parties accepted that decision on laches, acquiescence and delay was a discretionary judgment - appellant failed to establish error to overturn judgment - trial judge correct in finding board exercised its power for purpose other than that for which it was conferred by the Constitution - appeal dismissed.
James as Administrator of ZYL LTD [2015] WASC 57
Supreme Court of Western Australia
Master Sanderson
Corporations - plaintiff appointed administrator of company by resolution of company pursuant to s436A Corporations Act 2001 (Cth) - plaintiff sought orders addressing uncertainty he considered existed in relation to validity of resolution and appointment - ss201A, 447A, 447C, 1311 & 1312 - requisite number of directors under s201A(2) - held: Court satisfied there was breach of s201A(2) - it was arguable resolution passed was invalid - pt 5.3A of the Act operated to effect that notwithstanding non-compliance with s201A(2) plaintiff was validly appointed as administrator of company pursuant to s436A -  directors had acted bona fide - no-one was prejudiced by decision - appointment of administrator confirmed.
Docking v Schwarzkopf [2015] SASC 18
Supreme Court of South Australia
Stanley J
Wills - deceased died in 2009 - in  1989 deceased made Will appointing plaintiff as the sole executor of estate - in 2007 deceased made document purporting to be Will revoking all former Wills and testamentary dispositions - document appointed defendant sole executor - plaintiff sought to have 1989 will admitted to probate - testamentary capacity - held: 2007 executed in accordance with Wills Act 1936 (SA) - there was evidence establishing deceased lacked testamentary capacity at time of making 2007 Will - there was presumption arising from proper execution of 1989 will that the deceased had testamentary capacity at that time - orders pronouncing force and validity of 1989 Will.