Daily Banking: Wednesday, 23 September 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Deputy Commissioner of Taxation (Superannuation) v Ryan (FCA) - superannuation - trustees of SMSF lent money to themselves – breaches of Superannuation Industry (Supervision) Act – pecuniary penalties
Frankel v Paterson (NSWSC) - common property in strata scheme unilaterally appropriated by another unitholder after exchange - rule in Flight v Booth - no substantial misdescription of property - sale to proceed
Application by Elizabeth Marie Robinson (NSWSC) - succession - gift to son unless he died before attaining a vested interest - construction of will - intention of testator - vested meant vested in possession
Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd (ACTSC) - service of unsealed copy of application to set aside statutory - service not as required by Corporations Act - proceedings dismissed
Summaries With Link (Five Minute Read)
Deputy Commissioner of Taxation (Superannuation) v Ryan [2015] FCA 1037
Federal Court of Australia
Edelman J
Superannuation - husband and wife were trustees and members of self-managed superannuation fund – they caused the fund to lend money to themselves - s65 Superannuation Industry (Supervision) Act 1993 (Cth) - contravened sole purpose test - s62 Superannuation Industry (Supervision) Act 1993 (Cth) - failed to prepare a plan to address the excess in-house assets of the fund - s84 Superannuation Industry (Supervision) Act 1993 (Cth) - contraventions were serious contraventions - s196(4) Superannuation Industry (Supervision) Act 1993 (Cth) - husband and wife each ordered to pay monetary penalties of $20,000 to the Commonwealth, in monthly instalments over three years.
Frankel v Paterson [2015] NSWSC 1307
Supreme Court of New South Wales
Young AJA
Sale of land – purchasers of strata property were impressed by garden that was part of common property – after exchange, garden was fenced off by another unitholder to be a dog compound - purchaser did not complete - vendors issued notice to complete - purchaser sought declaration that notice to complete was invalid and that the purchaser did not have to complete, and for return of deposit - vendors sought specific performance - held: the fact that the vendors sought specific performance rendered anything to do with the notice to complete otiose - rule in Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160 - test is , objectively, whether a reasonable person in the position of the purchasers would take the view that the purchasers were not getting substantially the property they contracted for - the mere fact that a unitholder has unilaterally appropriated part of the common property is not of major concern as the appropriation can be reversed - this may require action either before the Strata Titles Commissioner or the Court - in the circumstances, there was no substantial misdescription of the property the purchasers were buying – vendors claimed dismissed and order for specific performance to be made.
Application by Elizabeth Marie Robinson [2015] NSWSC 1387
Supreme Court of New South Wales
Rein J
Succession - construction of will - deceased left gift to her son, unless he [died] before attaining a vested interest, in which case the gift was to go the son’s daughter - son died before gift vested in possession - question whether son died before attaining a vested interest - question of construction whether vested meant vested in possession or vested in interest - held: wills should be construed according to the plain meaning of their words, but the will should be read as a whole, in order to give effect to the testator’s intention - Fell v Fell (1922) 31 CLR 268 - undesirable to focus on the meaning particular words have been given in other wills - however, a rule of law may give a certain meaning to particular technical expressions - testator’s intention here was to give granddaughter a bequest that was intended to go to her son, if by the time the estate is ready to be distributed, the son had died - practical consequence of this interpretation was that the gift could go directly and immediately to the granddaughter without having to await the administration of her father’s estate - no scope for operation of a presumption that vested is a technical expression that means vested in interest by a rule of law.
Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd [2015] ACTSC 288
Supreme Court of the Australian Capital Territory
Mossop AsJ
Corporations law - statutory demand served on plaintiff - time limit to apply to set aside statutory demand is 21 days - s459G Corporations Act 2001 (Cth) - 20 days after service, a solicitor for the plaintiff attended the Supreme Court Registry and filed an application to set aside the statutory demand - despite a request by the solicitor, the Registry would not provide sealed copies of the application straight away, but said that sealed copies would be available in a few days - the solicitor then served an unsealed copy of the application on the defendant - the solicitor served the sealed application several days later, out of time - held: there is no capacity to extend the time to commence proceedings to set aside a statutory demand - David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 - Registry processes did not reasonably accommodate the need for the Court to promptly record the filing of documents and provide sealed service copies to the plaintiff so they could be served within time - nevertheless, plaintiff had not served a copy of the application within the meaning of s 459G(3) - Court did not have jurisdiction - proceedings dismissed.
Adhesive Pro