| Neale v Neale (NSWCA) - succession - payment of legacies to children of deceased by previous marriage - widow’s challenge failed - appeal dismissed |
| St George Bank v Hammer (No 2) (NSWSC) - possession - transfer of proceedings refused - defence struck out - summary dismissal refused |
| Traditional Values Management Limited (In Liq) - Application by Andrew Stewart Reed Hewitt as special purpose liquidator (VSC) - corporations - remuneration of special purposes liquidator |
| Belgravia Nominees Pty Ltd v Lowe Pty Ltd (WASCA) - partnership - dissolution of partnership before commencement of proceedings by one partner - accrued rights held jointly by partners - other partner joined to proceedings |
| Maples Winterview Pty Ltd v Liu (ACTSC) - contract - standard form building contract - builder not entitled to payments following its termination of contract - judgment for defendants |
| Summaries With Link (Five Minute Read) |
Neale v Neale [2015] NSWCA 206
Court of Appeal of New South Wales
Basten, Macfarlan & Gleeson JJA
Succession - deceased left whole estate to widow - two of deceased’s three children by earlier marriage sought provision from estate under pt 3.2 Succession Act 2006 (NSW) - Court awarded legacies to be paid from notional estate of deceased - widow sought to set aside legacies and that respondents pay her costs - each claimant had a child or children with medical conditions and physical disabilities causing distress and expense - circumstances relating to claimants which primary judge found favoured order for provision - competing needs of widow - held: widow’s challenges failed - widow was secure financially in comparison with claimants - security not materially affected by payment of legacies - no error identified on part of primary judge - appeal dismissed.
Neale
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St George Bank v Hammer (No 2) [2015] NSWSC 953
Supreme Court of New South Wales
Campbell J
Possession - bank sought judgment for possession over land of which defendant borrower was registered proprietor - borrower was in Hawaii - borrower disputed that bank was ‘lender’, and default - three notices of motion - borrower sought “transfer” proceedings to Federal Court of Australia - bank sought to strike out borrower’s defence - borrower sought summary dismissal of proceedings on basis they were vexatious and disclosed no reasonable cause of action - held: application for transfer of proceedings dismissed - Court satisfied defence should be struck out as it disclosed no reasonable defence - borrower completely filed to disclose heavy onus that outcome of litigation so certain that it would be abuse of process to proceed to full hearing on the merits - summary dismissal refused.
StGeorge
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Traditional Values Management Limited (In Liquidation) - Application by Andrew Stewart Reed Hewitt as special purpose liquidator [2015] VSC 338
Supreme Court of Victoria
Gardiner AsJ
Corporations - special purpose liquidator sought determination he was entitled to remuneration for work done - liquidator sought that costs of application be ‘Expenses’ in the liquidation of company (TVM) - ‘Special Purpose Liquidation Task’ - s473(1) Corporations Act 2001 (Cth) - held: Remuneration Request Approval Report complied with r9.4(7) Supreme Court (Corporations) Rules 2003 (Cth) and established remuneration sought fair and reasonable - application demonstrated prima facie case that claim fair and reasonable - application adequately addressed matters mentioned in s473(10)(a)–(d) - orders made in terms of interlocutory process.
Traditional
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Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143
Court of Appeal of New South Wales
McLure P; Buss & Murphy JJA
Partnership - appellant claimed it and company (Penhurst) carried on business in partnership - partners and another entered agency agreement with first respondent -partnership made payments to first respondent - partnership dissolved - appellant pleaded multiple causes of action against respondents - primary issue on appeal was whether, following dissolution of partnership, s49 Partnership Act 1895 (WA) was exclusive source of partner's right to bring proceedings to recover partnership property - held: partnership's accrued rights to take action against first respondent for breach of agency agreement and to recover statutory debt were held jointly by appellant and Penhurst - Penhurst must be joined as plaintiff with its consent, or made a defendant absent its consent under O18 r4(2) Rules of the Supreme Court 1971 (WA) - rule applied where plaintiff claimed relief to which any other person was entitled jointly with him - s49 not exclusive source of partner's accrued right to take legal proceedings in respect of partnership property after dissolution of partnership - appeal allowed.
Belgravia
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Maples Winterview Pty Ltd v Liu [2015] ACTSC 58
Supreme Court of the Australian Capital Territory
Mossop AsJ
Contract - standard form building contract - plaintiff building company sued first and second defendants who were joint owners of property - claim sought payment of amount owing following termination of building contract by plaintiff - whether contract validly terminated for defendants’ breach of obligation to pay one or more payment claims - held: due to plaintiff’s failure to install under slab insulation, plaintiff had no entitlement to progress payment for stages 2 and following - because plaintiff not entitled to make those progress claims it was not entitled to further money by reason of adjustment of contract price - plaintiff not entitled to make the claims it did on certain date and defendants not in breach of contract by failing to make payments - plaintiff not entitled to terminate contract - entitlement to payment dependent upon contract being terminated in accordance with clause - contract not terminated by plaintiff in accordance with that clause - plaintiff not entitled to payment under clause - defendant’s failure to obtain loan from bank was not breach of contract - judgment for defendants.
Maples
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