| McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (NSWCA) - contract - employment contract - Royal Bank breached contract by failure to apply redundancy policy to them - damages limited to severance payment
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| Onik New Energy Australia Pty Ltd v Henderson (NSWSC) - contract - installation of solar systems - claim for payment under contracts dismissed for want of prosecution - appeal dismissed
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| Paradisis v Kekatos as executor of the estate of the Late John Paradisis (NSWSC) - succession - family provision - long standing spouse of deceased granted legacy and “Crisp” order
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| Dual Homes Pty Ltd v Moores Legal Pty Ltd (VSC) - negligence - solicitors' duties - statutory demands - winding up - negligence and misleading and deceptive conduct - damages
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| Owerhall v Bolton & Swan Pty Ltd (VSC) - equity - settlement agreement - application for declaration settlement agreement invalid on basis plaintiff intoxicated by medication - no ground established to set aside agreement - proceeding dismissed
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| Phillips v McCabe (SASC) - Wills and estates - succession - substitution of beneficiaries clause - residuary estate clause - clause in relation to maintenance of family graves - construction of Will - executor's questions answered
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Dear Subscriber
1. Dentist Dr Jim Ironside discusses Dental Practice and Management of Risk with Benchmark Producer Louise Blase.
2. Jim is an adjunct professor at Charles Sturt University, a specialist prosthodontist practising in Sydney CBD. This is the first of a series on dentists. Useful for lawyers advising dentists and an introduction to risk in a dental surgery.
3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
5. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
6. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
7. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Acting for Professionals - A Specialist Dentist Dr Jim Ironside discusses Dental Practice and Management of Risk |
| Dr Jim Ironside is adjunct professor of dentistry at Charles Sturt University, a specialist prosthodontist practising in Sydney CBD. This is the first of a series on dentists. Useful for lawyers advising dentists and an introduction to risk in a dental surgery. |
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| Summaries With Link (Five Minute Read) |
McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James [2016] NSWCA 36
Court of Appeal of New South Wales
Macfarlan JA; Tobias & Emmett AJJA
Contract - employment contract - appellant (McKeith) and respondent (James) were employees of ABN AMRO Group (ABN) who were retrenched in context of third parties' competing takeover offers for ABN - one offeror was Consortium including first respondent Royal Bank - ABN made public statements that if Royal Bank's offer successful, ABN would ensure continuation of its redundancy policy - employees sued ABN and Royal Bank for non-payment of severance and ex gratia payments under policy - James succeeded - McKeith failed - unsuccessful parties appealed - held: ABN did not make contractual promises in relation to continuation of redundancy policy - Royal Bank breached contractual promise to McKeith and James that ABN would continue to apply policy to them - damages limited to severance payment - no breach by Royal Bank by failure to pay ex gratia payment to either McKeith or James.
McKeith |
Onik New Energy Australia Pty Limited v Henderson [2016] NSWSC 186
Supreme Court of New South Wales
Harrison AsJ
Want of prosecution - contract - dispute arising from contracts for installation of solar systems - statement of claim alleged defendants failed to make payment or allow access for removal of systems - Magistrate dismissed claim for want of prosecution - plaintiff appealed - procedural fairness - readiness of expert evidence - held: plaintiff was afforded procedural fairness - evidence supported dismissal of proceedings - appeal dismissed.
Onik |
Paradisis v Kekatos as executor of the estate of the Late John Paradisis [2016] NSWSC 220
Supreme Court of New South Wales
McDougall J
Succession - plaintiff spouse of long standing of deceased sought further provision from deceased's Will - held: deceased had made inadequate provision for plaintiff - deceased had left plaintiff only life estate in matrimonial home and had given remainder of estate to three children from former marriages - Court dissatisfied as to plaintiff's disclosure of assets - plaintiff should receive a legacy - recognition should be given to testator's wishes - “Crisp” order made to provide for plaintiff's needs whilst preserving testamentary scheme desire by testator.
Paradisis |
Dual Homes Pty Ltd v Moores Legal Pty Ltd [2016] VSC 86
Supreme Court of Victoria
J Dixon J
Negligence - solicitors' duties -proportionate liability - first plaintiff builder and developer was trustee of The Roiniotis Family Trust - second and third plaintiffs were family members and creditors/shareholders of first plaintiff - defendants were solicitor and two firms of which solicitor had been principal or employee - plaintiffs sued defendants for breach of retainer, and misleading or deceptive conduct in breach of s18 Australian Consumer Law in relation to conduct concerning creditor's statutory demands served on first plaintiff and winding up application against first plaintiff - first plaintiff had been wound up in insolvency as a result of application, which was undefended - first plaintiff alleged it was solvent at all times - Court terminated winding up - first plaintiff claimed it suffered loss in relation to winding up - held: liability imposed for wrongful conduct in respect of second statutory demand - advice in relation to winding up application negligent and involved misleading and deceptive conduct - advocate's immunity had some application but defendants not protected from award of damages - damages assessed - liability apportioned - judgment for plaintiffs.
Dual Homes |
Owerhall v Bolton & Swan Pty Ltd [2016] VSC 91
Supreme Court of Victoria
Derham AsJ
Equity - settlement agreement - plaintiff sought declaration ‘Terms of Settlement' entered into with defendant was invalid and that it be set aside on basis plaintiff was intoxicated from medication on day of signing - whether existence of ground which would render contract void or voidable - held: plaintiff was possibly under special disadvantage when he entered settlement agreement - defendant did not have prior knowledge of disadvantage - defendant's conduct was not unconscionable - plaintiff not under presumed undue influence of solicitor - plaintiff did not establish any ground to find settlement agreement invalid or to set it aside - proceeding dismissed.
Owerhall |
Phillips v McCabe [2016] SASC 27
Supreme Court of South Australia
Gray J
Wills and estates - succession - determination of executor's questions concerning administration of deceased's estate - construction of Will - r206 Supreme Court Civil Rules 2006 (SA) - substitution of beneficiaries clause in relation to residuary estate clause - clause in relation to maintenance of family graves - held: residuary estate clause created a class gift - clause in relation to family graves was void for creating a perpetual non-charitable trust - executor's questions answered.
Phillips |
