Category Archives: !! Regulations

Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 (17 December 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/375.html

CO-OWNERSHIP – Appeal – Joint tenancy at law – Whether tenancy in common in equity – Four unities of possession, interest, time and title – Right of survivorship – Equity is equality – Equity’s dislike of joint tenancies – Intention of parties when property was acquired – Whether consideration given for half share – Whether joint tenancy severed at inception by agreement to distribute proceeds if property sold – Whether joint tenancy severed at time of sale of property by agreement to divide proceeds – Whether joint tenancy severed by conduct – Death of joint tenant before completion of sale of the subject land – Whether nett proceeds of sale of the subject land lay with executor of estate or with liquidator of corporate joint tenant – Attack on credit of witnesses – Whether judge should have found facts based upon testimony of witnesses – Duty of Court of Appeal when challenge made to findings based on credit – Weighing of findings of credit with findings on all relevant probabilities – Appeal dismissed.

PRACTICE AND PROCEDURE – Application to lead fresh evidence – Failure of appellant to serve subpoena on bank at trial – Whether there was a ‘high probability’ the fresh evidence would have produced the opposite result at trial – Application refused.

PRACTICE AND PROCEDURE – COSTS – Non-party costs order – Costs order made against liquidator personally – Application for leave to appeal costs order against non-party – House v The King [1936] HCA 40; (1936) 55 CLR 499 – No error of principle – Application refused.

PRACTICE AND PROCEDURE – COSTS – Application for leave to appeal costs order – Offer of compromise made by respondent before appeal – Consequences of rejection – Whether respondent entitled to costs on an indemnity basis – Whether judge had reasonable regard to Calderbank offer – Whether judge erred in his analysis of Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2) [2005] VSCA 298; (2005) 13 VR 435 – Application dismissed.

R v Gittany (No 3) [2013] NSWSC 1670 (13 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1670.html

CRIME – evidence – where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way – call by Crown for production of any statements taken by solicitor for accused from persons identified in notice – whether client legal privilege lost upon service of notice – whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused

Mischel v Mischel Holdings Pty Ltd (in liq) [2012] VSC 292 (27 July 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/292.html

CO-OWNERSHIP – Joint tenancy at law – whether tenancy in common in equity – whether consideration given for acquisition of share – severance of joint tenancy by agreement and by conduct – effect of death of joint tenant after exchange of contracts but before completion of sale of the subject land – Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Conlan v Registrar of Titles [2001] WASC 188; (2001) 24 WAR 229 – Lyons v Lyons [1967] VR 160 – Public Trustee v Pheiffle [1991] 1 VR 19 (Pfeiffle v Pheiffle (1989) 13 Fam LR 692 (VSCFC)) – Burgess v Rawnsley [1979] Ch 429 – Transfer of Land Act 1958 (Vic) s 42 – Evidence Act 2008 (Vic) sub-s 67(1)

EQUITY – Maxims – Equity will not assist a volunteer – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Blackett v Darcy [2005] NSWSC 65; (2005) 62 NSWLR 392