ASLAN v KOPF [1995] NSWCA 26

ASLAN v KOPF SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and PRIESTLEY JA 9 May 1995, 16 May 1995 [1995] NSWCA 26

WILLS — mutual wills — withdrawal by one testator in lifetime of others — whether promise of irrevocability — held: No such promise expressly made or to be implied. Birmingham v Renfrew (1936) 57 CLR 666 appld.

CONTRACT — breach of — damages inadequacy of evidence — held: Judge must do his/her best. Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (FC) appld.

LEASE — repudiation — evidence of whether duty to seek specific performance held: Not. WILLS — mutual wills — three testators with long personal and business relations — mutual wills made on eve of departure of one testator for China subsequent falling out of testators — wealthiest testator in lifetime of others announces change of his will — one testator dies adhering to mutual will wealthiest testator subsequently dies leaving different will — proceedings by remaining testator for enforcement of agreement to make and adhere to mutual wills — whether agreement that wills would be irrevocable — trial judge (Windeyer J) rejects evidence of express agreement of irrevocability — whether circumstances give rise to inference of promise of irrevocability — held: (Gleeson CJ; Kirby P and Priestley JA concurring): They did not. Birmingham v Renfrew (1936) 57 CLR 666; Bigg v Queensland Trustees Ltd [1990] 2 QdR 11 (SC) applied.

CONTRACT — breach — repudiation of agreement for lease of residential properties — repudiation accepted — calculation of damages — evidence held to be unreliable — remaining evidence held to be insufficient for precise calculation — valuer's evidence rejected by trial judge — allowance made by judge challenged on appeal — held: The judge's duty was to do his best on the evidence presented and no error of principle or of fact was shown. Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (FC) applied.