Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 (31 October 2018)

EQUITY — charitable trusts — Validity and practicability — Administrative scheme ordered for a scholarship bequest for the purposes of the Mt Tomah Garden administered by the Royal Botanic Garden and Domain Trust.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here

Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618

CORPORATIONS – application to set aside a statutory demand or in the alternative for a permanent injunction – where creditor has refused to assign securities – whether the affidavit accompanying the statutory demand met the requirements of s 459E(3) of the Corporations Act 2001 (Cth) (Act) – whether creditor is intentionally acting to impair securities that ought to be available for a guarantor or an incoming financier upon payment of the principal debt – whether the Court should set aside the demand on the basis of s 459H(1) or s 459J(1)(b) of the Act or grant a permanent injunction – application allowed.

David Rayment represented the Plaintiff.

Reasons for the decision can be found here.

Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 8) [2018] FCA 1614 (26 October 2018)

BANKRUPTCY AND INSOLVENCY – application for judicial advice as to conduct of liquidation – whether provider of litigation funding was subrogated to the rights of the liquidator — whether debts owed by company – whether rule in Cherry v Boultbee [1839] Eng R 1099; (1839) 41 ER 171 applicable to distribution – application of the rule in Cherry v Boultbee — costs

Dr Christos Mantziaris represented the Liquidator appointed by PPB Advisory.

Reasons for the decision can be found here

Ubiparipovic & Ors v Vucicevic & Ors [2018] NSWSC 1583 (19 October 2018)

EQUITY — charitable trusts – application for approval of the settlement of charitable trust proceedings – Separation of assets of the St George Serbian Orthodox Church and School Cabramatta (SGSOCC) under two cy–près schemes effecting a division of assets between two different church organisations. 

Dr Christos Mantziaris represented the representatives of the SGSOCC (Plaintiffs).

Reasons for the decision can be found here

Wondal v Inspector-General in Bankruptcy [2018] FCA 1278

From the Federal Court of Australian

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on questions of law – where Tribunal had affirmed a decision of the Inspector-General in Bankruptcy to refuse to extend the time in which the applicant could file an application for review of the remuneration of her trustees – whether Tribunal denied the applicant procedural fairness – whether there was no evidence to support findings made by the Tribunal – whether Tribunal failed to consider applicant’s submissions – whether Tribunal’s reasons were inadequate.

David Rayment represented the Respondent.

Reasons for judgment can be found here.

 

Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139 (24 July 2018)

PRACTICE & PROCEDURE – COSTS – Security for costs – individual plaintiff ordinarily resident outside Australia – corporate defendant admittedly unable to meet a costs order – whether security for costs should be refused because of the merits of the plaintiffs’ claim – relevance of defendants’ failure to comply with undertaking given to the Court – whether ordering security will stultify proceedings – other factors said to be relevant to exercise of discretion

David Rayment represented the Plaintiffs/Respondents.

Reasons for the decision can be found here.

Parsons and ANOR & MASSON

From the Family Court of Australia:

FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia v GPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.

Michelle McMahon represented the first and second appellants.

Reasons for Judgement can be found here.

Stevenson v Ashton

From the Civil and Administrative Tribunal New South Wales:

BUILDING AND CONSTRUCTION – Home Building – successor in title seeking compensation for allegedly defective work from owner-builder – when work was complete – defective work – whether major defect – whether defect in a major element – what constitutes waterproofing – cost of rectification – whether work order should be made in respect of defective work carried out pursuant to owner-builder permit.

Michelle McMahon represented the Respondent.

Reasons for Decision can be found here.

 

Illusory consideration and uncertain terms – arguments of last resort?

Kirralee Young has had a success in a shareholder dispute in the Court of Appeal regarding illusory consideration and uncertainty in respect to the interpretation of a shareholders agreement. 

The decision relates to a dispute between the parties relating to the meaning and operation of certain funding provisions in a shareholders agreement. The agreement regulated their rights as equal shareholders in a company. In broad terms, one shareholder provided the intellectual property and expertise for the business and the plaintiff was required to provide funding. Despite the agreement being in place for over 12 months, one shareholder contended that the agreement was void and uncertain because the funding provisions were illusory and uncertain in the sense that they did not impose a definitive obligation on the other party to provide such funding. i.e there was an unfettered discretion.

It cannot be doubted that promises with no substance, or that are ‘illusory’, are not good consideration. For example, A cannot promise to buy B’s goods in return for ‘whatever A feels like paying’. This type of consideration is discretionary and without substance and is therefore not good consideration.  Nor can it be doubted that a promise is not illusory because the promisor has some discretion in how its obligations are to be performed. It is only necessary that there be an obligation that the promise be performed and that the discretion is contained within the defined parameters. 

The question in this case was whether the discretion was completely unfettered. The plaintiff argued that it did not have a completely unfettered discretion as to the provision of funding because it was required to act in good faith under the agreement and pursuant to duties arising at common law and in equity.  The defendant argued these duties were not fetters on the discretion because they could not be specifically enforced.

The Court of Appeal found in favour of the plaintiff that the consideration was not illusory consideration nor were the provisions uncertain and ultimately that the shareholders agreement was valid. They further found that good faith obligations can act as a fetter and that they did not need to be specifically enforceable. It was enough that those obligations could sound in damages only.

Further details of the case can be found here .

Public Inquiry under the Charitable Fundraising Act 1991 into RSL Lifecare Limited, RSL NSW & Ors

Steven Cominos appeared on behalf of 2 former directors of RSL Lifecare Limited at the public inquiry under the Charitable Fundraising Act 1991 (NSW) (CFA). During the inquiry, various allegations were made against RSL Lifecare and a number of its former directors regarding the use of funds derived through fundraising activites, in relation to compliance with the CFA’s requirements and regarding the exercise of their fudicuary duties in receiving consultancy fees. Neither of the former directors for whom Mr Cominos appeared were referred to any regulatory body for investigation or further action.

Baca v Union Standard International Group

Steven Cominos appeared for the Respondent, a margin FX issuer, in an international arbitration involving a claim brought by a former client. The Respondent was successful in upholding its decision to confiscate the claimant’s profits relying on the terms of its product disclosure statement. Those terms permitted the confiscation of profits due to the claimant having engaged in price latency arbitrage trading and its failure to disclose its use of plug-in software when executing margin FX trades on the Respondent’s platform. All the claimant’s allegations of breaches of the Corporations Act by the Respondent and that the relevant contractual terms were ‘unfair terms’ under the ASIC Act were also rejected.

Lever v Attorney General of NSW [2018] NSWSC 838 (29 May 2018)

EQUITY – Charitable trusts — private international law — validity of testamentary gift to a foreign executor applying the gift to a charitable purpose in a foreign jurisdiction — how the foreign charitable purpose is to be assessed — Hague Convention — evidence of foreign law.   

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Wright v Stevens [2018] NSWSC 548 (3 May 2018)

TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97

From the New South Wales Civil & Administrative Tribunal Appeal Panel:

COSTS – NCAT Internal appeal – amount in issue in excess of $30,000 – r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and cl 20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) – no issue of principle

COSTS – general rule that costs follow the event – application of the rule and discretion – no issue of principle

Michelle McMahon appeared for Adam Rekrut and Sandra Scott.

Stojic v Stojic [2018] NSWCA 28

In the New South Wales Court of Appeal:

SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered

David Smallbone appeared with David Rayment for the Appellant.

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

From the Federal Court of Australia:

MIGRATION – application for judicial review of a decision of the Minister to refuse a visa under s 501(1) of the Migration Act 1958 (Cth) – whether Minister misconstrued or misapplied s 501(6)(d)(i) of the Act – whether Minister required to give consideration to a psychologist’s report

Dr Stephen Tully appeared pro bono for the applicant.