Banking Tuesday, 31 March 2015 View in browser

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


Executive Summary (One Minute Read)
Re Rudd; ex parte Prince (WASC) - Wills - informal alterations - Will and codicil admitted to probate in pre-altered state - one document not capable of being admitted
Jadwan Pty Ltd v Rae & Partners (TASSC) - security for costs - trustee company ordered to pay security for costs of action
Registrar-General of NSW v Jea Holdings (Aust) Pty Ltd (NSWCA) - real property - Registrar-General not restrained from registering easement - appeal allowed
Mackay Sugar Ltd v Quadrio (QCA) - contract - concluded and binding supply contract under Sugar Industry Act 1999 (Qld) - appeal allowed
AME Hospitals Pty Ltd v Dixon (WASCA) - contract - negligence - extension of time to bring action against doctor and company - appeals dismissed
Summaries With Link (Five Minute Read)
Re Rudd; ex parte Prince [2015] WASC 107
Supreme Court of Western Australia
Registrar C Boyle
Wills - probate - informal alterations - executor sought to prove three testamentary writings of deceased - all documents altered since execution - executor sought admission of documents to probate in altered form - alterations to two of the documents not in compliance with s10 Wills Act 1970 (WASC) so unable to be admitted except by jurisdiction conferred by s32 - held: Will and codicil entitled to be admitted to probate as executed - informal alterations to each not capable of being admitted - third document not capable of being admitted.
Jadwan Pty Ltd v Rae & Partners [2015] TASSC 11
Supreme Court of Tasmania
Holt AsJ
Security for costs - defendants sought that company give security for costs of litigation - s1335(1) Corporations Act 2001 (Cth) - requirements that corporation was plaintiff there was reason to believe corporation would be unable to pay costs if defendants successful - justice of the case - held: plaintiff was trustee company with no tangible assets other than those held beneficially for trust - Court satisfied there is reason to believe that plaintiff was without assets to satisfy its liability if t costs of action awarded against it - justice of case lay with orders being made for security for costs.
Registrar-General of NSW v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 74
Court of Appeal of New South Wales
Bathurst CJ; Beazley P & Basten JA
Real property - first respondent registered proprietor of lot (lot 4) - second respondent registered proprietor of lot (lot 5) which abutted lot 4 - until 1964 lots formed part of land owned by shopping centre - land subdivided in 5 lots - in 1963 shopping centre transferred lot 5 to registered proprietor - memorandum of transfer contained covenant benefiting lot 5 and burdening lot 4 - covenant not recorded on certificate of title for lot 4 - Registrar-General served notice in 2012 on first respondent pursuant to s12A Real Property Act 1900 (NSW) advising he was proposing to record covenant on folio identifier of Lot 4 - first respondent sought  that Registrar-General be restrained from recording covenant - primary judge found first respondent held its interest as registered proprietor of lot 4 free of easement or restrictive covenant - held: subject matter of covenant capable of constituting a grant of an easement - validity of easement not affected by failure to record it on certificate of title of servient tenement - as easement omitted from title to servient tenement, exception to indefeasibility applied - appeal allowed.
Mackay Sugar Ltd v Quadrio [2015] QCA 41
Court of Appeal of Queensland
Carmody CJ; Fraser & Phillipides JJA
Contracts - statutory interpretation - trial judge declared respondent had not committed to concluded and binding contract with appellants in terms of “Tableland Collective Cane Supply and Processing Agreement” - declaration based on conclusion respondent had not complied with Sugar Industry Act 1999 (Qld) - whether trial judge erred in holding respondent had not signed a supply contract as required by s31(5) - whether trial judge erred in holding a prerequisite for a binding contract that parties intended to be legally bound was satisfied - held: respondent manifested assent to entering contract by signing execution page - respondent signed written supply contract in accordance with s31 - appeal allowed.
AME Hospitals Pty Ltd -v- Dixon [2015] WASCA 63
Court of Appeal of Western Australia
McLure P; Buss & Newnes JJA
Negligence - contract - limitations - Master granted respondent extension of time under s36 Limitation Act 2005 (WA) to commence action against doctor and company for breach of contract or negligence in connection with respondent’s birth - proper construction of s39 and its application to facts and circumstances - injury - physical cause - aware - ought reasonably to have become aware - attributable to - held: at time limitation period expired, respondent’s father not aware of physical cause of respondent’s encephalopathy or cerebral palsy and not aware either injury attributable to conduct of a person - Court’s power to extend time enlivened - Master granted extension of time by order within 3 year period in s39(4) - Master had power to make order within proper exercise of discretion - appeals dismissed.