David 2
ADMITTED TO THE LEGAL PROFESSION
29 Apr 1991
SIGNED VICTORIAN
BAR
ROLL
23 May 1996
ACCREDITED AS MEDIATOR
03 Feb 2005
QUALIFICATIONS
B.Com. (Hons), LLM.
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Queensland state schools should obey the law

22 Apr 2020

Queensland state schools who turn away their students are breaking the law.


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Can I send my child to school in Queensland?

19 Apr 2020

Summary


Americangothic

Disgruntled siblings lose appeal over family farm sold to brother

03 Oct 2019

The Victorian Court of Appeal has dismissed an application for leave to appeal arising from a deceased estate where the will was made in 1941 and the  testator died in 1962! 


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Sister defeats sister on basis of deceased dad's 37 year old property contribution

20 Sep 2019

In August 2019 the NSW Supreme Court upheld an adult daughters’ claim against her sister and brother-in-law on behalf of her late father’s estate. In 1982 the father had contributed 13% of the cost of a property which was purchased in the name of the sister and her husband. The three individuals lived there together, with the father in a "granny flat". But they never discussed who would own the land. After the father died in 2003 the sister and her husband let the property then sold it and purchased another. The Court held that the latter property and the rents from the former property were held 13% on resulting trust for the deceased estate (Calverly v Green (1984 155 CLR 242). This created an asset that passed to the plaintiff under the will. Consequently her claim for family provision became otiose. 


Cat’s In The Cradle But No Silver Spoon

09 Nov 2016

Last week the NSW Court of Appeal dismissed an appeal by a father who had been ordered to pay his 28 year old son $120,000.


Jurors: speak now or forever hold your peace

29 Oct 2016

Usually I write these blog posts for lawyers. This one is different. This blog is for lay people (lawyers are not allowed to sit on juries) because it’s about what can go terribly wrong if you become a juror and aren’t listening when your verdict is announced.


Size matters: body corporate rejects bigger deck

13 Oct 2016

This week the High Court unanimously reversed a decision of the Queensland Court of Appeal that was itself unanimous. The reversal represents the culmination of a four year campaign waged by a Mr Martin Albrecht of Noosa to convert five extra square metres of body corporate common property into deck space between his two adjoining townhouses. (This article in the Financial Review tells you about the peronalities involved). 


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Lord Denning Dumped on Proprietary Estoppel

20 May 2014

On 29 April I blogged here about the forthcoming decision of the High Court in Sidhu v Van Dyke, a case where a man promised a woman a share of a property if she continued to live and work on it. Judgment has now been published: Sidhu v Van Dyke [2014] HCA 19.


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Is the AFL obeying our Corporations and tax laws?

09 May 2014

Usually in this blog I write about equity.  But it's my blog and I'll write how I want to - so today I'm writing about the AFL.


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Reliance - Whose Onus?

29 Apr 2014

Earlier this year I appeared in a proprietary estoppel case: Rau v Rau [2014] VCC 175. Final addresses were made on 6 February 2014, judgment was given on 3 March 2014. One of the issues that arose was whether the plaintiff had relied on alleged promises to his detriment or whether his life would have been much the same in any event. Reference was made to the New South Wales Court of Appeal decision in Van Dyke v Sidhu [2013] NSWCA 198 and the Victorian Court of Appeal decision in Flinn v Flinn [1999] VSCA 109[1999] 3 VR 712. At the time of the trial the High Court  had granted the respondent in Van Dyke v Sidhu special leave to appeal but the appeal had not then been heard.


Sumowrestlerchild

The Little Guy Wins!

08 Sep 2013

It’s not often that bank customers emerge victorious in litigation, especially after failing at first instance. So you have to admire Mr Chol Young Lee, a Korean national who persuaded the Queensland Court of Appeal to tear up his guarantee to the ANZ Bank.


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Letters of Intent

05 Sep 2013

Legalwise Seminar 3 September 2013

On Tuesday 3 September 2013 I presented a Legalwise seminar on letters of intent at the RACV club in Melbourne. I made two key points.


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Dickens Lives!

02 Sep 2013

Students of Dickens will be overjoyed to know that Bleakhouse is alive and well. Harpur v Levy & Ors represents the 16th year of litigation arising out of the will of the late Peter Rand. In this, the latest chapter, the trustee of the Peter Rand Trust sought equitable recoupment from the estate of the late Mr Rand. Mr Rand had transferred several properties to the trust. The properties were mortgaged and rent from them had been applied in payment of interest to the mortgagee. The trustee later sold some of the properties and paid out the mortgagee. He then sought to recoup these payments from Mr Rand’s estate, of which Mr Levy and others were the executors.


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Tossing the Trustee

22 Aug 2013

When majority shareholders run a company oppressively, the minority can bring a proceeding under s. 232 of the Corporations Act. These proceedings often seek the winding up of the company. But what about where there is a unit trust? A trustee can also operate a trust oppressively to the minority of unitholders but winding the trustee up will not solve the problem.  In Literski v Fresh 2 U Pty Ltd & Ors [2013] VSC 307 the defendant was the trustee of a unit trust that carried on a wholesale fruit business. It allowed related businesses to be registered in the names of the majority unitholders. It  also sold the wholesale business but allowed some of the benefits of the sale to accrue to the majority unitholders. The plaintiff sought an order for removal of the trustee. 


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The Equity of Exoneration

21 Aug 2013

Suppose a husband and wife jointly take out a mortgage loan. Suppose also that the husband uses all the proceeds for his own purposes. In these circumstances the wife will be entitled to have the burden of repayment cast onto the husband's share of the mortgaged property. This is the "equity of exoneration".


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Action in “devastavit”.

21 Aug 2013

The New South Wales Court of Appeal has upheld an appeal seeking damages for the tort of “devastavit” whilst dismissing the appellant’s appeal for a breach of fiduciary duty.

The appellant and her two brothers  were beneficiaries under their father’s will.  The brothers were also executors. Before their frail father died, their mother sold properties belonging to the father under a power of attorney but pocketed the proceeds without authority.  She then disbursed some of the proceeds to the two brothers. The mother subsequently died. The appellant brought an action against her brothers for knowing receipt of trust property and an action in “devastavit”. “Devastavit” is the tort committed by an executor who fails to call in and collect the assets of a an estate which results in loss to the estate.


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Action for an 'Account'

19 Aug 2013

You don’t often see an action for "an account" these days but Justice Sifris of the Victorian Supreme Court has recently handed down a decision that outlines the relevant principles. It’s the case of Jane v Bob Jane Corporation Pty Ltd & Anor [2013] VSC 406 (9 August 2013).