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

Insurance, Banking, Construction & Government

Friday, 21 November 2014

Executive Summary (One Minute Read)
McMahon v Permanent Custodians Ltd (FCA) - bankruptcy - sequestration of estates following presentation of creditors' petitions - appeal dismissed (B)
Estate Zukowski; Domaradzka v Wawazyniuk (NSWSC) - succession - family provision - de facto spouse of deceased entitled to legacy (B)
Salta Constructions Pty Ltd v St George Bank (VSCA) - guarantee - notice of default - bank entitled to proceeds of sale of mortgaged property - appeal dismissed (B)
Suncorp-Metway Ltd v Sunlongsolar Pty Ltd (VSC) - summary recovery of land - mortgagee entitled to possession of property occupied by mortgagor's tenants (B)
Gardner v Persse (SASC) - legal practitioners - appellant falsely held herself out as entitled to practise law - conviction recorded - appeal dismissed (I)
Re Spencer (deceased) (QSC) - Wills - testamentary capacity - unsigned document was last Will of deceased - probate granted (B)
Boat Harbour Beach Blue Waters Pty Ltd v Matthews Properties Pty Ltd (TASSC) - damages - interlocutory judgment for damages to be assessed set aside (I C)
Summaries With Link (Five Minute Read)
McMahon v Permanent Custodians Ltd [2014] FCA 1238
Federal Court of Australia
Gleeson J
Bankruptcy - Federal Circuit Court made orders sequestrating appellants' estates pursuant to s43 Bankruptcy Act 1966 (Cth) - appellants appealed from dismissal of application for review of Registrar's decision - ss43, 52 & 60 Bankruptcy Act 1966 (Cth) - ss3, 4, 5, 6, 7, 8 & 11 Farm Debt Mediation Act 1994 (NSW) (FDM Act) - held: certain grounds of appeal predicated on contention FDM Act applied to question whether to make sequestration orders - however s5(2)(b) FDM Act expressly provided that FDM Act did not apply to a farmer whose property was subject of a bankruptcy petition - primary judge not required to apply FDM Act in making decision under appeal - primary judge entitled to decide appellant's right to seek special leave to appeal should not cause him to refuse to make sequestration orders - primary judge's erroneous belief that application for stay in High Court was made on a pro bono basis not material error of fact - no appellable error by primary judge - appeal dismissed.
McMahon (B)
Estate Zukowski; Domaradzka v Wawazyniuk [2014] NSWSC 1614
Supreme Court of New South Wales
Lindsay J
Succession - de facto spouse (widow) sought family provision relief under Ch 3 Succession Act 2006 (NSW) - plaintiff's status as eligible person not in issue - competing claims on deceased's bounty by daughter and sister - ss59(1), 59(2) & 60(2) - held: plaintiff had been left without adequate provision within meaning of s59(1)(c) - daughter and sister natural objects of deceased's bounty - legacy, rather than transfer of property in specie was an appropriate and sufficient method of addressing plaintiff's entitlement to further assistance - legacy granted.
Estate Zukowski (B)
Salta Constructions Pty Ltd v St George Bank [2014] VSCA 289
Court of Appeal of Victoria
Warren CJ; Tate & Beach JJA
Guarantee - dispute over proceeds of sale of mortgaged property - property sold by receivers appointed by respondent bank under contract of sale - bank retained proceeds as money it claimed it was owed pursuant to loans and guarantees and terms of first mortgage granted to it by guarantor - two further mortgages granted over property to appellant - appellant sought orders resulting in payment to it of part of proceeds of sale of property pursuant to its mortgages - primary judge upheld bank's argument concerning construction and effect of a notice of default and dismissed proceeding - appellant claimed notice of demand was not sufficiently clear and unambiguous to constitute a notice of demand for payment from guarantor under guarantees - held: appeal must be dismissed if there was valid demand for payment on guarantor under guarantees - no error in judge's conclusion that notice of default was a demand on company under guarantees - appeal dismissed.
Salta Constructions Pty Ltd (B)
Suncorp-Metway Ltd v Sunlongsolar Pty Ltd [2014] VSC 580
Supreme Court of Victoria
Derham AsJ
Summary recovery of land - mortgagee sought order for possession of property under Order 53 Supreme Court (General Civil Procedure) Rules 2005 (Vic) - property occupied by defendants who claimed to be tenants of property from registered proprietor - registered proprietor mortgaged property to plaintiff and was in default - plaintiff entitled to possession under mortgage and Transfer of Land Act 1958 (Vic) - mortgage restricted right of mortgagor to let property - it could only do so if plaintiff gave written consent - registered proprietor did not have consent - registered proprietor and defendants were all controlled by same person who claimed that, after the date of the mortgage, officers of plaintiff verbally consented to tenancies under which defendants occupied property - defendants claimed this gave rise to waiver of term requiring written consent and plaintiff was estopped from relying on absence of any written consent - held: no factual dispute that denied the applicability of Order 53 procedure - even if there was verbal consent given by plaintiff, it could not operate as a waiver of requirement for written consent - estoppel could not be properly raised - mortgagee entitled to possession.
Suncorp-Metway Ltd (B)
Gardner v Persse [2014] SASC 174
Supreme Court of South Australia
Nicholson J
Legal practitioners - appellant charged with falsely holding herself out as being entitled to practise law contrary to s21(1) Legal Practitioners Act 1981 (SA) - appellant appealed against Magistrate's decision to refuse application pursuant to s16 Criminal Law (Sentencing) Act 1988 (SA) to refrain from recording a conviction - held: open to Magistrate to not be satisfied appellant unlikely to reoffend in similar manner - Magistrate's discretion to refrain from recording conviction under s16 not enlivened - any further inquiry as to whether conviction should be recorded was otiose.
Gardner (I)
Re Spencer (deceased) [2014] QSC 276
Supreme Court of Queensland
Dalton J
Wills - testamentary capacity - deceased died in 2013 - competing applications as to whether deceased's 1991 Will, or an unsigned 2013 document ought be admitted to probate - not in dispute that deceased had testamentary capacity at time of making Will - s18(2) Succession Act 1981 (Qld) - held: deceased had testamentary capacity in relation to unsigned 2013 document - Court satisfied deceased intended unsigned Will of 13 August 2013 to form his Will – unsigned document was last Will of deceased - probate granted.
Re Spencer (B)
Boat Harbour Beach Blue Waters Pty Ltd v Matthews Properties Pty Ltd [2014] TASSC 59
Supreme Court of Tasmania
Holt AsJ
Damages - proportionate liability - plaintiff sought to set aside interlocutory judgment for damages to be assessed which it obtained against first defendant as result of failure to comply with order - plaintiff concerned that first defendant may be without funds or insurance and that judgment may deprive it of opportunity of pursuing other defendants because of proportionate liability provisions contained in Civil Liability Act 2002 (Tas) - held: existence of judgment put plaintiff at risk of being unable to recover damages against defendants as claimed - plaintiff at risk that first defendant would not be able to satisfy judgment against it either directly or through insurer - first defendant did not oppose making of order setting aside judgment against it - other defendants not compromised in ability to defend claims against them by reason of entry of judgment or by reason of delay in applying to have it set aside - pleadings disclosed causes of action against other defendants - setting aside judgment and leaving plaintiff free to pursue other defendants not without purpose - judgment set aside.
Boat Harbour Beach Blue Waters Pty Ltd (I C)

The Snow-Storm
By Ralph Waldo Emerson

Announced by all the trumpets of the sky,
Arrives the snow, and, driving o'er the fields,
Seems nowhere to alight: the whited air
Hides hills and woods, the river and the heaven,
And veils the farmhouse at the garden's end.
The steed and traveler stopped, the courier's feet
Delayed, all friends shut out, the housemates sit
Around the radiant fireplace, enclosed
In a tumultuous privacy of storm.

Come see the north wind's masonry
Out of an unseen quarry evermore
Furnished with tile, the fierce artificer
Curves his white bastions with projected roof
Round every windward stake, or tree, or door.
Speeding, the myriad-handed, his wild work
So fanciful, so savage, nought cares he
For number or proportion. Mockingly,
On coop or kennel he hangs Parian wreaths;
A swan-like form invests the hidden thorn;
Fills up the farmer's lane from wall to wall,
Maugre the farmer's sighs; and, at the gate,
A tapering turret overtops the work.
And when his hours are numbered, and the world
Is all his own, retiring, as he were not,
Leaves, when the sun appears, astonished Art
To mimic in slow structure, stone by stone,
Built in an age, the mad wind's night-work,
The frolic architecture of the snow.

Ralph Waldo Emerson