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Recent Cases

Foreign resident capital gains withholding payments*

Posted in Conveyancing and Property Law on 20 July 2017

Foreign resident capital gains withholding payments*
From 1 July 2016, the tax legislation has provided that purchasers of real property for $2m, or more, must withhold 10% of the purchase price and remit that sum to the Australian Taxation Office (ATO), unless the vendor can produce at settlement a “clearance certificate”.

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Saravinovski v Saravinovska - [2017] NSWCA 85; BC201703164 - 04 May 2017

Posted in Family on 9 June 2017

Supreme Court of New South Wales, Court of Appeal

Judge(s)

Beazley ACJ, Leeming JA and Emmett AJA

The Judges of the Court of
Appeal affirmed a decision ordering the adjustment of the property of a
father-in-law in favour his daughter-in-law on the basis of their ‘close
personal relationship’ within the meaning of the (NSW) Property (Relationships)
Act 1984 s 4.

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Budget Impact on Family Law System*

Posted on 11 May 2017

In last night’s Budget, the Government made a number of announcements that will affect the family law system. The Family Law Section is disappointed that the measures do not include the substantial funding boost that the system needs to remedy the very significant delays being experienced by litigants in the Courts, nor to increase legal aid funding (beyond the reversal of the cuts to community legal centres that was announced 2 weeks ago).

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Hicks v Mater Misericordiae Ltd [2017] QSC 38

Posted in Wills and probate on 13 April 2017

Supreme Court of Queensland

Douglas J

Wills and estates - succession - trusts and trustees - deceased left residue of
estate to ‘Medical Superintendent for the time being of the Mater Children’s
Hospital in Brisbane for the purchase of medical equipment for the treatment of
seriously ill children’ - when Will was executed there was no position
described as Medical Superintendent of Mater Children’s Hospital - Mater
Children’s Hospital in existence when Will executed but ceased to exist - first
respondent operated hospital services providing medical services for seriously
ill children but did not operate children’s hospital - functions of Mater
Children’s Hospital ceded to hospital operated by second respondent - whether
bequest should be applied for first respondent’s or second respondent’s benefit
- whether bequest should be applied cy-près - s275 Hospital and Health
Boards Act 2011 (Qld) - s33C(1) Succession Act 1981 (Qld) - s105(1) Trusts
Act 1973 (Qld) - held: Court made cy-près order in favour of second
respondent.

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Estate George Roby, deceased [2017] NSWSC 265

Posted in Wills and probate on 13 April 2017

Supreme Court of New South Wales

Lindsay J

Wills and estates - two proceedings concerning administration of deceased’s
estate - plaintiff granddaughter of deceased sought declaration concerning
proper construction of deceased’s Will and order that home unit held on trust
for her or second defendant be transferred to her - second defendant, who was
deceased’s son and plaintiff’s father, sought family provision relief - Family
Provision Act 1982 (NSW) - Succession Act 2006 (NSW) - held:
plaintiff entitled to relief sought, subject to second defendant’s entitlement
to family provision relief - declaration as to entitlement to ownership of
property - defendant granted legacy - orders made for family provision relief.

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Validity of Powers of Attorney

Posted in Wills and probate on 13 April 2017

Solicitors regularly receive instructions in various transactions from attorneys appointed under powers of attorney that appear to be valid documents. When should a solicitor make further enquiries to establish the validity or otherwise of those instructions? This question was addressed by the NSW Supreme Court in Yaktine and Perpetual Trustees. The solicitor was instructed by the son of Mr and Mrs Yaktine to act on his purchase of a property. The son also instructed the solicitor to act on a large mortgage of his parent’s property with a significant amount to be paid towards the purchase of his property. The son produced a forged power of attorney and told the solicitor that his parents were overseas but they agreed with the transaction. Mortgage documents were signed by the son under the power of attorney and witnessed by the solicitor. The solicitor also witnessed 2 statutory declarations which the son signed on behalf of his parents. Of course this cannot be done. The parents first learnt of the transaction when they received a letter of congratulations from the lender following settlement. The court found that the solicitor was guilty of making a false and misleading representation in submitting the mortgage documentation to the lender’s solicitor.

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Xabregas v St George Bank -A Division of Westpac Banking Corporation [2017] NSWSC 200 (Property Law)

Posted in Family on 13 April 2017

Xabregas v St George Bank - A Division of Westpac Banking Corporation [2017] NSWSC 200

Supreme Court of New South Wales

Darke J

Real property - caveats - plaintiff was registered proprietor of property as
tenant in common in equal shares - plaintiff sought under s74K Real Property
Act 1900 (NSW) to extend operation of caveat against title to lot in strata
plan and leave to ‘lodge fresh caveats if necessary’ - defendant held
registered first mortgage over property and was in possession of it - bank sold
property at auction - plaintiff claimed bank had engaged in improper exercise
of power of sale - held: plaintiff failed to establish grounds to restrain
contract for sale’s completion - not appropriate to grant leave under s74O to
lodge further caveat - leave refused

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Re Kumar [2017] VSC 81

Posted on 13 April 2017

Re Kumar

[2017] VSC 81

Supreme Court of Victoria

McMillan J

Wills and estates - succession - forfeiture rule - deceased’s wife allegedly
killed deceased - deceased died intestate - wife survived deceased and died on
same day - deceased’s parents sought grant of administration for deceased’s
estate - whether wife’s estate had interest in deceased’s estate -
determination whether deceased or wife died first - whether forfeiture rule
applied to preclude wife’s estate from taking interest in deceased’s estate -
held: wife killed deceased in unlawful homicide - wife survived deceased but
criminal culpability resulted in forfeiture rule precluding wife from taking
interest in deceased’s estate - grant of letters of administration ordered in
plaintiffs’ favour

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Stojic, Deceased [2017] NSWSC 168

Posted in Wills and probate on 13 April 2017

Estate

Supreme Court of New South Wales

Lindsay J

Wills and estates - probate - multiple Wills - deceased left multiple Wills,
including a 2013 Will which was agreed to be valid and two disputed 2014 Wills
(‘23 May 2014 Will’ and ‘6 June 2014 Will’) - proceeding concerned
determination of 2014 Wills’ validity or otherwise - it was agreed that 2013
Will should be admitted to probate if not revoked by one or the other of the
2014 Wills - testamentary capacity - suspicious circumstances - assistance to
testator - held: Court not satisfied deceased had capacity to make 6 June 2014
Will - Court not satisfied 6 June 2014 Will was last Will of free and capable
testator - suspicious circumstances attended execution of 23 May 2014 Will -
Court not satisfied deceased knew and approved the contents of 23 May 2014 Will
- Court not satisfied 23 May 2014 Will was last Will of a free and capable
testator - 2013 Will admitted to probate

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Rendering v Gaffy & Ors [2017] VSC 53

Posted in Injury Compensation on 23 March 2017

DEK Rendering v Gaffy & Ors [2017] VSC 53

Supreme Court of Victoria

J Forrest J

Judicial review - accident compensation - first defendant employed by plaintiff
- plaintiff sought judicial review of Medical Panel’s decision concerning first
defendant’s work capacity - panel found first defendant’s work capacity limited
to two days per week and that this would continue indefinitely - ‘continue
indefinitely to be incapable of undertaking further additional employment or
work’ in s94CD(4)(b) Accident Compensation Act 1985 (Vic) - whether
Panel asked itself wrong question - held: Panel misdirected itself as to
s94CD(4)(b), which required consideration of ‘further or additional employment
or work’ without limitation to work being performed by worker when authority
required to make decision - Panel’s decision quashed - matter remitted

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