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

Weekly Law Review

Thursday, 19 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 (I B)
Ashton v Pratt (NSWCA) - contract - no binding legal relations between escort and late Richard Pratt - appeal dismissed (I B)
Attorney General of NSW v Homeland Community Ltd (NSWCA) - trusts - company did not hold property on charitable trust (B)
Stewart v Ackland (ACTCA) - negligence - student injured performing backward somersault on jumping pillow on farm – occupiers of farm who conducted amusement park business liable - appeal dismissed (I)
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.
Lavin (I B)
[From Benchmark 17 February 2015]
Ashton v Pratt [2015] NSWCA 12
Court of Appeal of New South Wales
Bathurst CJ; McColl & Meagher JJA
Contract - appellant provided deceased with escort services  - in 2003 appellant and deceased had conversations in which he stated he would pay appellant certain allowances, give her a car and set up trust for each of her children - primary judge found conversations not intended to create legal relations, that contract if made it was void against public policy, that executor not estopped from denying conversations were legally binding, and that any binding obligations had been released - appellant’s children joined proceedings seeking to enforce term in conversations to create trust - held: parties did not intend to create legal relations and - estoppel claim against executor failed - correspondence constituted an accord and satisfaction - 2005 document effective to release deceased from appellant’s claims - appeal dismissed.
Ashton (I B)
[From Benchmark 18 February 2015]
Attorney General of NSW v Homeland Community Ltd [2015] NSWCA 15
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Sackville AJA
Trusts - Attorney General of NSW sought declaration that respondent company held property upon a charitable trust for purposes identified in deed - primary judge dismissed proceedings - Attorney General appealed - held: primary judge did not err in permitting company to withdraw concession that it did not contest validity of charitable trust and to amend defence so as to withdraw admission it was bound by a trust - finding that company bound by trust required finding that it took transfer to it with notice that trustees intended it to hold property on trust - primary judge did not err in declining to make that finding - appellant’s application to adduce further evidence refused - no significant prospect a different outcome would have ensued - appeal dismissed.
Attorney General of NSW (B)
[From Benchmark 19 February 2015]
Stewart v Ackland [2015] ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers of farm on which they conducted business involving amusement park - respondent university student injured when performing aerial backward somersault on jumping pillow owned by owner/occupiers - trial judge found owner/occupiers liable for respondent’s injuries - held: trial judge correctly decided activity in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was not obvious - open to trial judge to find breach of duty by appellants and that causation established - appeal dismissed.
Stewart (I)
[From Benchmark 17 February 2015]
Song of the Witches: “Double, double toil and trouble”
By William Shakespeare
(from Macbeth)
Double, double toil and trouble;
Fire burn and caldron bubble.
Fillet of a fenny snake,
In the caldron boil and bake;
Eye of newt and toe of frog,
Wool of bat and tongue of dog,
Adder's fork and blind-worm's sting,
Lizard's leg and howlet's wing,
For a charm of powerful trouble,
Like a hell-broth boil and bubble.
Double, double toil and trouble;
Fire burn and caldron bubble.
Cool it with a baboon's blood,
Then the charm is firm and good.
William Shakespeare