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.”

I am pleased to have graduated last Tuesday from the College of Law with a Master of Laws (Applied Law) majoring in Wills and Estates and Commercial Litigation.

It was a useful and practical course.

Picking up the SRM Lawyers Best Graduating Student Prize for Commercial Litigation on the night was an added bonus.

 

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These are being made more frequently these days – particularly where the Court is satisfied that the unsuccessful party has unnecessarily contributed to the costs of the proceedings, and the total costs of litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made.

On Tuesday, Adamson J made such an order in Webster v Super Smart Strategies Pty Ltd (No. 4) [2017] NSWSC 1416.

Her Honour fixed costs in a sum approximating 75% of the total fees rendered by the successful party.

The unsuccessful parties were in bankruptcy and liquidation respectively, and that gave rise to an inference that “it is unlikely that the costs orders, much less the judgment sums ordered… will be paid in full. In these circumstances, it would be unjust to require Finn Foster to spend further money on a costs assessment”: at [12].

On 16 June 2017, in Psyfari Pty Ltd v Rathcown Pty Ltd [2017] NSWSC 776, Parker J gave some helpful guidance as to the appropriate order for costs in proceedings which are discontinued or compromised before the Court has determined the questions raised in them – in a case which it was unnecessary to proceed to final hearing because of the actions of a third party.

His honour held at [19]-[20]:

“Generally speaking, where proceedings are discontinued or compromised before the Court has determined the substantive questions raised in them, the Court will not embark on a trial of the proceedings simply to determine the incidents of costs. Rather, in those circumstances, the Court’s general practice is to leave the costs to lie where they fall.

This is not an invariable practice. In some cases the Court may be persuaded that the outcome represents a capitulation by one side so that the other side has in substance succeeded in the proceedings even though there was no contest. In other situations, the Court may consider that the conduct of one party was unreasonable, so that it should bear the costs: Re Minister for Immigration; Ex parte Lai Qin (1997) 186 CLR 622 at 624.”

Parker J found that in the case before him, there was no reason to depart from the usual approach ie costs should lie where they fell, holding at [28] that:

“this is a clear instance of proceedings becoming unnecessary because of the actions of a third party. The defendant’s position in correspondence was that the agreement had been terminated, but also that even if it was still on foot the Babylon festival was not sufficiently similar to the Psyfari festival for it to be a breach of the agreement. Counsel for the plaintiff did not suggest that these defences were hopeless, or that the defendant had otherwise conducted itself unreasonably.”

On 23 December 2016, in Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 the Full Federal Court (Siopsis, Collier and Katzmann JJ) made an order for costs in favour of a client for whom I appeared as advocate.

The order is rather spectacular for a number of reasons.

First, it was made in what is normally a “no-costs” jurisdiction, on the basis that the proceedings were commenced by the applicant without reasonable cause within the meaning of s.570(2)(a) of the Fair Work Act: [12]-[15].

Secondly, it was made jointly and severally against a party to the proceedings (the applicant before the Full Court), and a non-party director of that party, applying principles from Mason CJ and Deane J in Knight v FP Special Assets Ltd (1992) 174 CLR 178, and more recently French CJ, Kiefel, Bell and Keane JJ in Selig v Wealthsure Pty Ltd [2015] HCA 18 at [43]: [27]-[34].

Thirdly, it was made on an indemnity basis (see [16]) in a fixed sum ($48,387.18), rather for an amount to be fixed by assessment or taxation: [35]-[36]. That in part flowed from a failure by the applicant to accept a Calderbank offer: [19]-[24].

As I have noted in earlier articles, it appears that Courts are becoming more willing to make lump sum costs orders. As the Full Court observed at [36]:

“Paragraph 4 of the Costs Practice Note (GPN-COSTS) issued by the Chief Justice on 25 October 2016 refers to the preference of the Court, wherever it is practicable and appropriate to do so, to make a lump-sum costs order. In our view this case is one where it is both practicable and appropriate to do so.”

 

 

On 6 September 2016, in Damevski v Hope [2016] NSWSC 1231,  Pembroke J dismissed a claim by one of two children of a deceased (Nick), together with his wife (Rada) and their son (Darko), in which they sought an order that title to certain property at Rockdale that they had continuously resided in since 1994 (which was owned by the deceased) be conveyed to them.

The plaintiffs claimed:

“that promises were made and expectations raised that led Nick and Rada to believe that the Rockdale property would remain their home after the deaths of Tome [the father, who died in 2002] and Gurga [the mother, who died in 2006]; that they relied on those promises and changed their position to their detriment; and that the appropriate equitable relief is that their assumption should be made good.” [3].

They relied on the doctrine of equitable estoppel by encouragement, as most recently considered by the High Court in Sidhu v Van Dyke [2014] HCA 19.

As an alternative, they sought leave to bring a claim (more than 7 years out of time) under the Family Provision Act 1982.

This was notwithstanding that:

• the deceased had died in 2006 without a will, and the rules of intestacy provided relevantly that her estate would be shared equally by her two surviving children (Nick and his sister, Nada, the defendant);
• the plaintiffs had lived rent-free in the Rockdale property since 2006 while Nada had “worked long hours doing menial work in order to afford her own flat” [22];
• the plaintiffs had “done their best to deprive Nada of her entitlement [on an intestacy] and to conceal the true position from her.” [26]

The doctrine of equitable estoppel by encouragement is said to come into existence:

“… when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to the detriment.”: Delaforce v Simpson-Cook [2010] 78 NSWLR 483; Milling v Hardie [2014] NSWCA 163 at [36].

His Honour found at [10] that:

“It seems probable that Nick and Rada spent at least $35,000 and possibly as much as $50,000 on improvements to the Rockdale property. They were prepared to do so because of an assumption on their part that they would have an indefinite right of residence in the property and that they might possibly inherit it. There was little more to their assumption than hope and aspiration, mingled with optimism. They took a risk. Both knew that they had no guaranteed entitlement. And both were acutely aware that Nick’s sister, Nada, might also have a claim on the property. Although from their perspective at the time, Nada was then currently better off than they were and there was reason to think that the Rockdale property would eventually come to them entirely, without the need to share its proceeds with Nada. The risk of expenditure was therefore worth taking. But as will become clear, circumstances changed.”

In ultimately deciding to dismiss the proprietary estoppel claim, his Honour found that:

“Neither Nick nor Rada were plausible on the central questions of representation, encouragement, reliance, detriment and reasonableness: … I formed the impression that Rada, in particular, was astute to the issues in the case and that, whether consciously or subconsciously, her evidence reflected her perceived self- interest and could not be relied on safely. As I said at the outset, the plaintiffs’ desperation to retain the home where they have lived for a long time is understandable but legally insufficient. There was no tangible corroboration of the plaintiffs’ case and every reason to be sceptical.” [15]

and:

“I am not satisfied at the factual level that the requisite ingredients of a claim based on estoppel or constructive trust – namely representation, encouragement, reliance, detriment and reasonableness – have been established. The more probable explanation, as often happens in a family context, is that the monies were expended in hope and expectation, with an eye to the future, knowing of the risks involved, but taking a gamble as to the legal outcome. This is one of those cases. The situation is compounded in this case by the absence of credible foundational evidence of any clear representation or encouragement by Tome. The uncorroborated assertions of Nick and Rada do not provide me with the requisite level of reasonable satisfaction.” [17]

In refusing to grant leave to bring the claim under the Family Provision Act out of time, his Honour was critical of how plaintiffs had “done their best to deprive Nada of her entitlement [on an intestacy] and to conceal the true position from her”  and that their “mendacious and self-interested behavior deserves censure rather than the exercise of the court’s discretion in their favour.” [26].

This case highlights a number of important issues for cases of this type. It is helpful:

• if the representation is clear and unambiguous.
• that there is corroboration of the relevant representation by the deceased –  preferably in writing.
• if there is no such corroboration,  it is essential that at least the plaintiffs will not be susceptible to disbelief on their oaths, as the court scrutinises self-interested evidence by plaintiffs, particularly where the maker of the alleged representations is deceased.
• that the case aligns with subjective concepts of fairness. The maxim “those who seek equity should do equity” applies.

   

   

John Laxon

Owner, Laxon Lex, Lawyers

“I have worked with Justin, both as counsel briefed by me when he was at the Sydney Bar and more recently in his capacity as Special Counsel and consultant to my firm. Justin is a terrific litigator and a well prepared, persuasive and compelling advocate. His measured style of advocacy, combined with his thorough case preparation and objectivity, are qualities clients appreciate. I will happily continue to retain Justin as an advocate in my matters.”

August 31, 2016, John was Justin’s client

David Kennedy

Senior Partner at Kennedys Law Firm

“I’ve engaged Justin to assist me with several litigation matters. I have found Justin to be highly skilled, pro-active in his approach to the litigation; and cost effective for the clients.

He has the ability to research thoroughly and then distill complex matters in dispute down to the key issues, in a way that clients (and Courts) can easily understand.”

August 29, 2016, David was Justin’s client

 

George Sabados

Transforming F&B Businesses

“Prodigious work ethic, detailed understanding, strategic acumen and rapid turnaround rate – an impressive combination of skills. Incisive and a great counsellor with a keen eye on managing costs.

I have now had several dealings with Justin and each time have been impressed with the rapidity and scale of result. I would highly recommend Justin any day of the week!”

August 16, 2016, George was Justin’s client

 

John Slaytor

Director of Photography at The Funeral Photographer

“I recently needed a lawyer in a commercial matter involving a dispute with a landlord.

When I was an insolvency practitioner having to use lawyers on a daily basis, I would despair at how few of them had any commercial acumen.

Justin swiftly resolved the dispute using his extensive network, his commercial acumen, his ethics, and his knowledge of the law. His fees were well earned.

I wouldn’t hesitate to use Justin again.”

August 15, 2016, John was Justin’s client

 

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

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

Whether you wish to challenge a will, or uphold it, please call me on 1300 431 895, or email me at justin@conomylegal.com to request an initial consultation to see if I can assist you.

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

Liability limited by a scheme approved under Professional Standards legislation