13 Dec

Posted at 03:04h in NSWCA

Catchwords: SUCCESSION — contested probate — testamentary capacity — application of test in Banks v Goodfellow — where will apparent rational on its face — where evidence of hallucinations or delusions — whether delusions or hallucinations affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect ...

13 Dec

Posted at 03:04h in FCAFC

Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of the Administrative Appeals Tribunal affirming decision of a delegate of the Minister to refuse to grant the appellant a visa - where visa required satisfaction of the health criteria in cl 4007 of the Migration Regulations 1994 (Cth) - where delegate's refusal of the visa based on the appellant's son's failure to meet the health criteria by reason of his medical condition - where opinion prepared by Medical Officer as required by the Regulations - whether assessment undertaken by the Medical Officer sufficiently identified the nature and extent of the appellant's son's medical condition - whether opinion of Medical Officer was based on sufficiently current information - whether the Tribunal did not afford the appellant procedural fairness in failing to disclose a certificate issued under s 375A of the Migration Act 1958 (Cth) - where information covered by the certificate was used to determine the costs to the Australian community of medical and community services for the appellant's son - consideration of the primary judge's approach to materiality - appeal allowed ...

12 Dec

Posted at 03:04h in FCAFC

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – fast track review process – where the appellant provided to the Department certain documents relating to a complaint to the Human Rights Commission of Sri Lanka (the Human Rights Documents) – where the Human Rights Documents were not before the delegate of the first respondent at the time he made a decision to reject the appellant’s visa application – where the Secretary did not provide the Human Rights Documents to the Immigration Assessment Authority – where the appellant submitted the Human Rights Documents to the Authority but the Authority refused to consider them – where the Authority proceeded on the misapprehension that the Human Rights Documents had not been previously provided to the Department – whether the Secretary breached the obligation in s 473CB(1)(c) of the Migration Act 1958 (Cth) to give the Authority “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review” – whether the Authority failed to carry out the review required by Pt 7AA of the Migration Act ...

12 Dec

Posted at 03:04h in NSWCA

Catchwords: CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations. CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator ...

11 Dec

Posted at 03:05h in NSWCA

Catchwords: SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice ...

11 Dec

Posted at 03:05h in NSWCA

Catchwords: LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of aggravated robbery – whether fit and proper person – order removing name from roll – whether necessary to make declaration of unfitness – declaration not made COSTS – whether there should be an order as to costs – discretion of the court as to costs – whether facilitating rehabilitation a sound basis for declining to make costs order ...