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The latest issue of the Australian Law Journal (Volume 91 Part 9) contains the following material:
CURRENT ISSUES – Editor: Justice François Kunc
- A New Chief Justice for Victoria
- Time to Amend s 44 of the Constitution?
- Facts Lost in the Headlines
- The Referendum Council Report
- Voluntary Assisted Dying Bill to be Introduced in Victoria
- Report on Memory in Child Abuse Cases
- NSW Bar Association Proposes a Walama Court
- Law Council of Australia’s Justice Project
- National Conference on the Future of Australian Legal Education
CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth
- Short-term Lettings in Strata Developments
- Gifts in Contemplation of Death
AROUND THE NATION: NORTHERN TERRITORY – Editor: Hon Dean Mildren AM RFD QC
- A New Court House for Alice Springs
- The New Local Court
CRIME AND EVIDENCE – Editor: Justice Phillip Priest
- Developments in Tendency Evidence
FAMILY LAW – Editor: Richard Ingleby
- It Seemed Like a Good Idea at the Time: When Recording Conversations Backfires
THE LEGAL OBSERVER – Editor: Michael Pelly
- Playing Politics with the Politicians
CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO
- Appropriate Penalties for Company Directors: The Flugge Case
RECENT CASES – Editor: Ruth C A Higgins
- United Kingdom: Statutory Rights of Employees – European Union Law – Prescribed Fees for Commencing Proceedings – Whether Fees Interfere Unjustifiably with the Right of Access to Justice
- Migration: Regional Processing – Commonwealth Power to Enter into Arrangements Relating to Regional Processing – Commonwealth Power to Authorise Activities in Another Country Unlawful under that Country’s Laws
- Evidence: Opinion Evidence – Exceptions to Opinion Rule – Proof of Assumption Rule – Basis Rule – Whether Assumptions Underlying Expert Opinion must be Proved for Opinion to be Admissible
- Landlord and Tenant: Retail Premises – Premises Comprised Cold and Cool Storage Warehouse and Transport Facility – Meaning of “Retail Provision of Services” under Retail Leases Act 2003 (Vic)
Subrogation to the Trustee’s Personal Right of Indemnity – Ahmed Terzic
It is settled that an unsecured creditor to whom a trustee has properly incurred a liability in the administration of a trust may be subrogated to the trustee’s right of indemnity out of the trust estate in circumstances where the trustee is insolvent or where obtaining judgment against the trustee would be futile. This is the only method available for the creditor to recover value from the trust estate. An alternative for the creditor to recoup its debt might be to seek subrogation to the trustee’s personal right of indemnity against the beneficiaries of that trust; however, Australian case law has proven this to be a murkier proposition. This article traces the judicial development of the unsecured creditor’s remedy of subrogation to the trustee’s personal indemnity in Australia. It contends that such a creditor may be subrogated to the personal indemnity without the need for it to exhaust all of its remedies against the trustee.
Family Provision Applications: A Critique – Anthony Gray
Legislation in all Australian jurisdictions provides for those disappointed with what they received, or did not receive, from the execution of a will, to challenge it. Originally conceived to protect wives and children from grossly unfair testamentary provisions of husbands and fathers, these provisions have substantially expanded from their original basis, to include many other types of claims, and claimants. As will be seen, the prospects of success of such a challenge are surprisingly high. It is the objective of this article to challenge the current orthodoxy, on the basis that the case decisions reflect, generally, an insufficient regard for the wishes of the testator. It is the author’s belief that, in such cases, the starting pre-disposition should be one of deference to clearly expressed wishes of any testator of full capacity and that judicial interference with such wishes should very much be the exception, rather than the norm.
Just over 100 years ago, the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) was enacted in New South Wales. It consisted of two parts, the first relating to what has become known as family provision law and the second relating to the guardianship of children. This article is limited to the former.
BOOK REVIEWS – Editor: Angelina Gomez
- Enrichment at the Claimant’s Expense: Attribution Rules in Unjust Enrichment – by Eli Ball – reviewed by Keith Mason AC QC
- Specialist Courts for Sentencing Aboriginal Offenders: Aboriginal Courts in Australia – by Paul Bennett – reviewed by Julian R Murphy
- Interpretation of International Investment Treaties – by Tarcisio Gazzini – reviewed by Kanaga Dharmananda SC and Baxter Roberts
- Jacobs’ Law of Trusts in Australia – by John Dyson Heydon and Mark James Leeming – reviewed by J C Campbell QC FAAL
- Judicial Review of Administrative Action and Government Liability – by Mark Aronson, Matthew Groves and Greg Weeks – reviewed by Alan Robertson
- Prosecuting – by Raymond Gibson – reviewed by Hugh Selby
For the PDF version of the table of contents, click here: ALJ Vol 91 No 9 Contents.
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