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

Banking

Thursday, 25 September 2014
Executive Summary (One Minute Read)
Sahab Holdings Pty Ltd v Castle Constructions Pty Ltd (NSWSC) - real property - easements - Anshun estoppel - summary dismissal of proceedings refused
Prestige Lifting Services Pty Ltd v Wood (VSC) - solicitors' costs - claim for unpaid fees for acting for company - no contract between solicitor and company - appeal allowed
Barklya Pty Ltd v Richtech Pty Ltd (QSC) - contract - claim for amount owing under funding deed - summary judgment refused
Public Trustee v Alzheimer's Australia WA Ltd [No 2] (WASC) - Wills and estates - testamentary capacity - validity - probate in solemn form of Will
Summaries With Link (Five Minute Read)
Sahab Holdings Pty Ltd v Castle Constructions Pty Ltd [2014] NSWSC 1281
Supreme Court of New South Wales
White J
Real property - plaintiff sought easement over defendant's land - s88K Conveyancing Act 1919 (NSW) - defendant applied for summary dismissal - Anshun estoppel - overlap of issues between earlier proceedings and present proceedings - held: Court not persuaded Anshun estoppel so clear that plaintiff's claim was not seriously arguable - overlap between proceedings related to significant issue - issue not necessarily decisive - no overlap in respect of other issues - summary dismissal refused.
Sahab Holdings Pty Ltd
Prestige Lifting Services Pty Ltd v Wood [2014] VSC 465
Supreme Court of Victoria
Ginnane J
Solicitors' costs - solicitor sought unpaid fees for acting for company - instructions to act for company given by only one of its two directors - directors in dispute about conduct and control of company - Magistrate gave judgment for solicitor - no dispute about quantum of fees - whether solicitor had been validly retained by or authorised on behalf of company to perform work for it - ss3.4.17, 3.4.19 & 3.4.26 Legal Profession Act 2004 (Vic) - held: Magistrate erred by finding a contract between company and solicitor - error affected Magistrate's decision - appeal allowed - company's counterclaim remitted to Magistrate's Court.
Prestige Lifting Services Pty Ltd
Barklya Pty Ltd v Richtech Pty Ltd [2014] QSC 233
Supreme Court of Queensland
A Wilson J
Contracts - Barklya advanced Richtech money under funding deed - Barklya sought summary judgment against Richtech for amount owing under deed - Richtech claimed money was advanced in course of long standing arrangement for investment in real estate development - to be reimbursed only when developments complete - also claimed that, even if payments were loans, they were repayable only when Richtech had sufficient funds or profits from developments - held: factual circumstances and legal issues were sufficiently equivocal that summary judgment should not be given.
Barklya Pty Ltd
Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337
Supreme Court of Western Australia
Pritchard J
Wills and estates - deceased died in October 2009 - August 2009 Will appointed Public Trustee as executor - Public Trustee sought grant of probate in solemn form of August 2009 Will - certain defendants contended deceased did not have capacity in August 2009 and advanced 1997 Will as last valid Will - s8 Wills Act 1970 (WA) - Public Trustee alternatively advanced June 2009 Will which was identical to August 2009 Will - June 2009 Will drafted by Public Trustee, signed by deceased, stapled to letter, and returned to Public Trustee - Public Trustee had then requested deceased to sign August 2009 Will - held: deceased had testamentary capacity in August 2009 - August 2009 Will valid - unnecessary to consider Public Trustee's alternative case that June 2009 Will was valid - probate in solemn form of August 2009 Will granted.
Public Trustee