Daily Banking: Thursday, 25 February 2016
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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)
Mateljan v HTT Huntley Heritage Pty Ltd (NSWCA) - equity - assignment - appellant’s application to be substituted for company in appeal proceedings dismissed
Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd (VSCA) - stay - security for costs - application for stay refused - application for security for costs granted
Kerr v Kerr (No 2) (SASC) - costs - wills and estates - rectification of second codicil to deceased’s Will - costs to be paid from estate
Williams v Schwarback [No 2] (WASC) - Wills and estates - probate in solemn form sought in respect of 2009 Will - deceased’s testamentary capacity infected by delusional beliefs about son - probate refused in respect of 2009 Will - probate of earlier Will granted
Ryan v Ryan (TASSC) - equitable estoppel - proprietary estoppel - equitable compensation - plaintiff to be reimbursed for outlay of sum made on faith of deceased’s representations concerning property

Dear Subscriber

1. Today we have the first session on Marketing for Law firms by Rob Knowsely in discussion with Louise Blase.

2. It’s a great session.

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.

5. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

6. You should watch on Wi-Fi to avoid excess data usage charges.

7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

Warm regards
Alan Conolly for Benchmark

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Benchmark Television
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Marketing in Law Firms (Part 1)
Rob Knowsley presents in discussion with Louise Blase on marketing for law firms based on 40 years experience - gold.
Summaries With Link (Five Minute Read)
Mateljan v HTT Huntley Heritage Pty Ltd [2016] NSWCA 20
Court of Appeal of New South Wales
Gleeson & Leeming JJA; Emmett AJA
Equity - assignment - appellant sought to be substituted for Land Enviro Corp Pty Ltd (LEC) as appellant in appeal proceedings in relation to orders made by judge of Equity Division - appellant claimed entitlement by way of assignment from LEC, to benefit of causes of action in appeal proceedings - respondents contended purported assignment ineffective - purported assignment’s mechanism - insolvencies - substitution motions - ss5, 27, 58, 115, 116, 178 & 179 Bankruptcy Act 1966 (Cth) - s77 The Commonwealth Constitution - s420 Corporations Act 2001 (Cth) - ss3, 4 & 6 Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) - s87 Trade Practices Act 1974 (Cth) - held: substitution motion dismissed.
Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2016] VSCA 19
Court of Appeal of Victoria
Tate & Osborne JJA
Stay - security for costs - applicant sought to stay orders pending determination of application for leave to appeal and proposed appeal - respondent sought that applicant provide security for costs of proposed appeal under r64.38(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) or s1335(1) Corporations Act 2001 (Cth) - prejudice - whether there were special circumstances due to applicant’s lack of resources - held: stay application was premised on risk which was hypothetical and which Court did not accept had probable substance - there was risk of prejudice to respondent if stay granted - stay refused.
Kerr v Kerr (No 2) [2016] SASC 24
Supreme Court of South Australia
Gray J
Costs - wills and estates - Court ordered rectification of second codicil to deceased’s Will - one executor had agitated for rectification of codicil and other executor agitated against rectification, and there was affidavit evidence supporting application and affidavit evidence which could defeat it - application for payment of costs out of estate - held: Court did not consider defendant unreasonable to oppose rectification - not unreasonable for executor to join defendant in opposing rectification - there should be no departure from usual order - costs to be paid from estate.
Williams v Schwarback [No 2] [2016] WASC 43
Supreme Court of Western Australia
Chaney J
Wills and estates - testamentary capacity - first and second plaintiffs sought declaration that 2009 Will was the deceased's last will and proof of 2009 Will in solemn form - r13 Non-contentious Probate Rules 1967 (WA) - O 73 r11, O 73 r 19 Rules of the Supreme Court 1971 (WA) - held: Court satisfied deceased’s testamentary capacity was infected by delusional beliefs about son which influenced her in disposition of her property reflected in 2009 Will - 2009 Will not a valid - Court pronounced force and validity of 2006 Will.
Ryan v Ryan [2016] TASSC 4
Supreme Court of Tasmania
Estcourt J
Equitable estoppel - proprietary estoppel - equitable compensation - plaintiff claimed deceased father made representations to him that he would give property to him and that he relied on those representations to his detriment - onus - whether representations made - whether objectively reasonable for plaintiff to rely on representations - whether plaintiff established he relied on representations to detriment - held: plaintiff was induced to make monetary outlay on faith of deceased's assurances - not unconscionable for deceased to resile from the assurances if first defendant reimbursed plaintiff for outlay - first defendant to pay plaintiff sum of actual loss by way of equitable compensation.