Daily Banking: Friday, 31 July 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)
Yesilhat v Calokerinos (NSWSC) - wills and estates - succession - summary dismissal of family provision claim refused - security for costs refused - notice of motion dismissed
Thomas v Arthur Hughes Pty Ltd (NSWSC) - corporations - disposition of company’s assets - breach of directors’ duties - declarations and orders
St Kilda Arts and Events Company (Vic) Pty Ltd v Apes with Wings Pty Ltd (VSCA) - contract - application for stay of execution of judgment dismissed
Bensons Funds Management Pty Ltd v Body in Balance Chiropractic Pty Ltd (VSCA) - administrative law - landlord and tenant - refusal of application to discharge injunction - leave to appeal refused
Summaries With Link (Five Minute Read)
Yesilhat v Calokerinos [2015] NSWSC 1028
Supreme Court of New South Wales
White J
Summary dismissal - wills and estates - succession - security for costs - defendant sought summary dismissal of plaintiff’s application for provision from deceased’s estate pursuant to Pt 3.2 Succession Act 2006 (NSW) - defendant contended it was not seriously arguable that plaintiff was an eligible applicant for a family provision order - defendant claimed no reasonable cause of action was disclosed and that proceedings were abuse of process and vexatious - defendant’s submissions focused on requirement for existence of a de facto relationship that de facto partners lived together as a couple - held: arguable that present case was an exceptional case in which two people, who had not lived in common residence and had not made actual provision for mutual support, might be said to have been ‘living together as couple on a genuine domestic basis’ - summary judgment refused - security for costs refused - notice of motion dismissed.
Thomas v Arthur Hughes Pty Ltd [2015] NSWSC 1027
Supreme Court of New South Wales
White J
Corporations - equitable remedies - directors’ duties - proceedings concerning disposition of company’s assets - liquidator of company claimed that director breached duty to act in good faith and not for improper purpose - transfer of shares and securities and provision of loans to companies controlled by director - held: director breached fiduciary and statutory duties - director entered transactions not for company’s benefit and where she had conflict between duty to company and personal interest - director also breached duty under s181(1) Corporations Act 2001 (Cth) - contracts rescinded - property transferred and fruits of property held on constructive trust - director and son personally liable to compensate company - corporate accessories liable as constructive trustees to re-transfer property and account for profit - orders and declarations - parties to bring in short minutes.
St Kilda Arts and Events Company (Vic) Pty Ltd v Apes with Wings Pty Ltd [2015]VSCA 199
Court of Appeal of New South Wales
Weinberg JA & Garde AJA
Judgment and orders - applicants brought proceedings against respondents arising out of contract for sale and purchase of properties - respondents obtained judgment against applicants - applicants had foreshadowed appeal and sought stay of orders for payment of damages and costs - no application for leave to appeal filed - need to show special or exceptional circumstances - prospects of winding up or bankruptcy if judgment debt enforced - held: applicants did not discharge heavy burden of persuasion in applying for stay - prospects of success were only speculative in the realms of conjecture - application for stay dismissed.
Bensons Funds Management Pty Ltd v Body in Balance Chiropractic Pty Ltd [2015] VSCA 198
Court of Appeal of Victoria
Whelan & Ferguson JJA; Robson AJA
Administrative law - landlord and tenant - applicant leased premises to respondent - respondent claimed to have exercised option for further five years - applicant had decided to develop premises - there was dispute between parties in Victorian Civil and Administrative Tribunal - respondent obtained interlocutory injunction restraining applicant from taking possession of leased premises - undertaking in usual form given by respondent - Tribunal refused applicant’s application which in effect sought discharge of injunction if guarantor under lease who was also director of respondent failed to give undertaking as to damages - applicant sought leave to appeal - whether applicant must positively establish damage would be suffered as result of injunction before an adequate undertaking as to damages required - strength of evidence as to damage before an undertaking would be required - held: Court satisfied there was real prospect of success in sense it was not fanciful, however Court not satisfied there would be substantial injustice if leave to appeal refused - leave to appeal refused.
Letter from Town: The Almond Tree
By D. H. Lawrence, 1885 - 1930

You promised to send me some violets. Did you forget?
White ones and blue ones from under the orchard hedge?
Sweet dark purple, and white ones mixed for a pledge
Of our early love that hardly has opened yet.

Here there’s an almond tree—you have never seen
Such a one in the north—it flowers on the street, and I stand
Every day by the fence to look up for the flowers that expand
At rest in the blue, and wonder at what they mean.

Under the almond tree, the happy lands
Provence, Japan, and Italy repose,
And passing feet are chatter and clapping of those
Who play around us, country girls clapping their hands.

You, my love, the foremost, in a flowered gown,
All your unbearable tenderness, you with the laughter
Startled upon your eyes now so wide with hereafter,
You with loose hands of abandonment hanging down.