New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Deeds


  1. 19/08/2011
    Deeds: Trust deed; business acquired and carried on by a unit trust; arrangement to pay the previous owner of the business a sum of money known as the "Preferential Draw"; one of the trustees of the unit trust was removed and the appellants exercised an option to acquire that trustee's units; units to be acquired by the appellants had to be valued according to the Trust Deed; at the time the option was exercised the Preferential Draw was in "deficit"; appellants contended that the unpaid amount had to be taken into account in valuing the units; trial judge found that the parties intended the "Preferential Draw" to be an agreement for the distribution of net profits of the business rather than a liability which was due; whether the unpaid amount of the Preferential Draw was a liability of the trustees in respect of the Trust and should be taken into account in valuing the units
    Menkens & Anor v Wintour  [2011] QCA 201
  2. 07/07/2011
    Deeds: Construction of power of appointment in trust deed; whether corporate entity eligible for appointment as a trustee; sole director and shareholder of corporate entity is both appointor and beneficiary; power of court to remove and appoint new trustee; whether appointment of trustee is precluded under trust deed; Trustees Act 1962 (WA), s 77
    Scaffidi v Montevento Holdings Pty Ltd  [2011] WASCA 146
  3. 17/06/2011
    Deeds: Guarantee; construction; commercial; objective intention of the parties; business efficacy; bank loaned money to the respondent; bank secured the respondent's loan obligations with guarantees, including a guarantee from the respondent as trustee, and a mortgage over trust land entered into by the respondent in its capacity as trustee; whether it was a condition precedent or an implied condition that the guarantees were Code of Banking Practice compliant; whether the guarantees was invalid because the respondent both borrowed from the bank and guaranteed the loan; whether summary judgment should be granted in favour of the appellant
    ING Bank (Australia) Ltd v Leagrove Pty Ltd & Anor; ING Bank (Australia) Ltd v Stafford & Ors  [2011] QCA 131
  4. 26/11/2010
    Deeds: Guarantee; sub-lease; whether assignee's guarantors were released from liability to the lessor under their guarantee because the lessor had released the original lessee's guarantor from all liability under his guarantee and therefore under the lease; whether assignee's guarantors had a right of contribution vis-à-vis the original lessee's guarantor, which they had lost as a result of the release in his favour by the lessor; if the release had the effect contended by the assignee's guarantors, whether the solicitors for the lessor were liable to the lessor in negligence
    Willis v Teparyl Pty Ltd  [2010] VSCA 318
  5. 24/11/2010
    Deeds: Guarantee securing lessee's obligations under lease; whether appellant's obligations under the guarantee, which existed at termination of the lease, were discharged or extinguished by entry of the tenant and respondents into a licence agreement; whether, by entering into the licence, the respondents avoided any loss or damage arising by reason of the tenant's breaches, thereby fully mitigating any loss and damage; whether indemnity enforceable against appellant
    Tebb v Filsee Pty Ltd  [2010] VSCA 311
  6. 22/09/2010New Zealand
    Deeds: Construction of limitation of assignment clause in royalties deed; reasonableness of party withholding consent to assignment; objective enquiry, hence evidence of collateral purpose not relevant; discussion of analogous principles related to limitation of assignment of lease between landlord and tenant
    Greymouth Gas Kaimiro Ltd v GXL Royalties Ltd  [2010] NZSC 117
  7. 10/09/2010
    Deeds: Lease; agreement for lease drafted in terms of a contract; signature page indicated document executed as a deed; indicia of a deed; whether lease agreement a deed; agreement for lease signed by respondent and forwarded to appellants' solicitors; earlier correspondence indicated parties intended to become bound contemporaneously; whether agreement for lease delivered when forwarded to appellants' solicitors
    400 George Street (Qld) Pty Limited v BG International Limited  [2010] QCA 245
  8. 08/10/2009
    Deeds: Delivery; escrow
    Mirzikinian v Tom & Waterhouse Pty Ltd  [2009] NSWCA 296
  9. 25/09/2009
    Deeds: Company arrangement; deed; operation of Pt 5.3A of the Corporations Act 2001 ; principles of statutory interpretation when affirming fundamental rights, including proprietary rights
    City of Swan v Lehman Brothers Australia Ltd  [2009] FCAFC 130
  10. 22/07/2009
    Deeds: Scope and content of oral agreement; whether 'guarantee'; deed of release; whether deed enforceable by respondent; construction of deed; whether deed releases respondent; rectification or specific performance of deed
    Tipperary Developments Pty Ltd v The State of Western Australia  [2009] WASCA 126