This rather recent (12 February 2018) ex tempore decision of Brereton J provides a useful overview of the functioning of the cross-vesting scheme in a simple case.

In this case, the plaintiff was resident in New South Wales and the second defendant in Queensland, similar inconvenience would be suffered by each if the proceedings were not heard in their own State, the business of the corporation in question was based in Queensland, and the law on the relevant dispute – the law of contract – was the same in each State.

Brereton J summarised the law at [3] as follows:

”On an application for transfer of proceedings under s 5, the central question is, which is the more appropriate Court? It is not necessary that the Court in which the proceedings were instituted be a “clearly inappropriate forum” before a transfer order will be made; merely that it be shown that the proposed transferee Court is a “more appropriate” forum. “Appropriateness” is not purely a question of convenience, but involves an inquiry – which is not always capable of answer – as to which is the forum in which the proceedings would most appropriately be brought. That involves questions of jurisdictional nexus as well as mere convenience.”

His Honour held at [5]:

”At least where other matters are equal [in this case, residence of witnesses in different states and similar inconveniences, and the law being the same in each state on the relevant issues in the dispute ] the residence of a defendant tends to attract greater significance than the residence of the plaintiff. That is because jurisdiction ordinarily depends on the presence of a defendant rather than the presence of a plaintiff within its jurisdiction to enliven the Court’s adjudicatory jurisdiction. Thus, it has been said, in the context of the cross-vesting jurisdiction, that, ordinarily, the residence of the defendant is more significant than that of the plaintiff to establish jurisdiction, and this may count in identifying the more appropriate forum: see BHP Billiton Limited v Shultz [2004] 221 CLR 400 at 423 [19]; British American Tobacco Australian Ltd v Gordon [2007] NSWSC 230 at [44], and BioAg Pty Ltd v Hickey [2007] NSWSC 296 at [7].”

The proceedings were transferred to Queensland.

 

 

 

 

It is essential to validity of a will that, at the time it was made, the person making it had “testamentary capacity”.

In Carr v Homersham [2018] NSWCA 65, the Court of Appeal considered the meaning and language of the expression “insane delusion”, and the significance of false beliefs held by testators or testatrices and the circumstances in which they may indicate a lack of testamentary capacity.

Summary: Just because a testatatrix has a material false belief about a potential beneficiary,  A,  does not mean that she lacks the capacity to comprehend and appreciate the claims of potential beneficiaries, including A.

I have a special interest in litigation involving wills and estates.

I have a Master of Laws (Applied Law) majoring in Wills & Estates and Commercial Litigation.

I am happy to consider whether you have a claim to challenge a will because of a lack of testamentary capacity. 

If you are an executor named in a will, and there is an assertion that the will is bad because of a lack of testamentary capacity, I am also happy to to advise you.

Please call me on 1300 431 895, or email me at justin@conomylegal.com to request an initial consultation.

Justin Conomy t/as Conomy Legal – A.B.N. 29 651 337 387

Liability limited by a scheme approved under Professional Standards legislation

The decision of Beech-Jones J on 6 April 2018 in Kostov V Gibson [2018] NSWSC 428 illustrates that a New South Wales District Court Judge has absolute privilege in respect of matters recorded in a judgment that might be defamatory pursuant to s.27 of the Defamation Act 2005 (NSW), and that this is so whether or not they were activated by malice.

Summary dismissal was ordered of the plaintiff’s claim, with Beech-Jones J holding at [10]:

“As I have stated a perusal of the amended statement of claim makes it clear that the matters complained of are matters published in the course of a proceeding in an Australian court specifically the publication of matters in a judgment as referred to in s 27(2)(b)(iii) [of the Defamation Act 2005 (NSW)]. It follows that there could not be a clearer case of absolute privilege than that which is raised by Ms Kostov’s amended statement of claim. There is no scope for seeking to resist that conclusion by alleging any form of mala fides on the part of her Honour in performing her judicial function in deciding Ms Kostov’s proceedings. In these circumstances, it is not necessary to explore any further question as to whether the judicial immunity at common law for the conduct of judges in court other than a Superior Court is qualified by a mala fides exception.”