| Gadens Lawyers Sydney
Pty Ltd v Symond (NSWCA) – damages – negligence - breach of contract – misleading and
deceptive conduct – negligent misstatement - appeal against assessment of
damages allowed in part (I B) |
| Valuer-General v
Fivex Pty Ltd (NSWCA) – valuation of land – unimproved value of fee simple – assumptions
in s6A(2) Valuation of Land Act 1916
(NSW) – appeal allowed (B C G) |
| Walton v Walton (NSWSC) – equity – no
undue influence in execution of deed by deceased – statement of claim struck
out (B) |
| Reitano v Shearer (QCA) – costs -
successful appeal against quantum of judgment – respondent to have costs thrown
away by abandonment of appeal grounds – appellant otherwise awarded costs (I) |
| Pope v Madsen (QCA) - equity - no
maintainable cause of action by child against parent for breach of fiduciary
duty arising from abuse – statement of claim dismissed (I) |
| Barry v Queensland
Building and Construction Commission (QSC) – Commission’s direction to rectify issued
within time – declaratory relief refused (C G) |
| Lewis Blyth &
Hooper (a firm) v Smith (WASCA) – solicitors’ costs - cancellation of costs agreements – failure
to provide estimate of costs – one of two appeals allowed (I) |
| Summaries With Link (Five Minute Read) |
Gadens
Lawyers Sydney Pty Ltd v Symond
[2015] NSWCA 50
Court of Appeal of New South Wales
McColl & Gleeson JJA; Tobias AJA
Damages - professional negligence -
contract - misleading and deceptive conduct - damages – respondent sued law
firm in relation to legal advice concerning tax consequences of revised
ownership structure of business – primary judge found appellant negligent , in breach
of contract and in contravention of s52 Trade
Practices Act 1974 (Cth) – appellant appealed against assessment of damages – held: no error in
primary judge’s comparison undertaking for assessment of loss - primary erred
in concluding respondent suffered loss by forfeiture of franking credits in
franking account – no error in determination of pre-judgment interest to be
included in respondent’s damages – appeal allowed in part.
Gadens (I B)
|
Valuer-General
v Fivex Pty Ltd
[2015] NSWCA 53
Court of Appeal of New South Wales
Basten, Gleeson & Leeming JJA
Valuation of land – unimproved value of
fee simple - appeal and cross-appeal from determination of valuations of land
on which building was erected – building found to have floor space ratio which
was greater than permitted by local government plan - primary judge had
expressly determined land value pursuant to s 6A(1) Valuation of Land Act 1916 (NSW) without making assumptions stated
in s6A(2) – primary judge held that finding of highest and best use had
consequence that assumptions identified in s6A(2) were not engaged –
whether s6A2 had further operation once highest and best use determined - mandatory assumption as to existing uses and
improvements – statutory construction - held: respondents’ construction of
s6A(2) rejected - primary judge did not err in failing to address GST treatment
of sales where argument not made at trial – appeal allowed – cross-appeal
dismissed.
Valuer-General (B C G)
|
Walton
v Walton
[2015] NSWSC 218
Supreme Court of New South Wales
Stevenson J
Equity - undue influence - plaintiff and
first defendant were children of deceased - proceedings concerning deed made
between first defendant and wife on the one hand, and plaintiff on the other -
deed forgave debts owed by defendants to deceased - plaintiff asserted
execution of deed by deceased was brought about by exertion of undue influence
by defendants - held: Court satisfied deceased understood effect of entry into deed
and that deed - Court satisfied deceased’s entry into deed was her own idea -
plaintiff failed to satisfy Court deceased’s execution of deed brought about by
undue influence – statement of claim dismissed (B)
Walton (B)
|
Reitano
v Shearer
[2015] QCA 37
Court of Appeal of Queensland
Holmes, Fraser & Philippides JJA
Costs - appellant succeeded in appeal
against quantum of judgment in personal injuries action - Court increased award
for general damages and awarded amount for future special damages - respondents
claimed trial judge’s error in respect of general damages was appellant’s fault
in directing him wrong ISV scale and that they did not contribute in any way to
failure to award future special damages – respondents had been successful in
resisting further challenges to awards - respondents sought that there should
be no costs order made and that appellant should pay costs thrown away by
abandonment of appeal grounds - held: mistakes by trial judge not attributable
to respondents however they had advanced arguments on correction of ISV scale
error and did not concede error in failing to award future special damages - respondents
should have costs thrown away by abandonment of grounds – appellant should
otherwise have costs of appeal.
Reitano (I)
|
Pope v
Madsen
[2015] QCA 36
Court of Appeal of Queensland
Holmes JA; Mullins & Henry JJ
Pleadings - equity – fiduciary duties –
applicant sought leave to appeal against refusal to dismiss respondent’s statement
of claim as not disclosing cause of action known to Australian law – respondent
sought equitable damages and exemplary damages for breach of fiduciary duties
against applicant, who was her biological father, for alleged physical and
sexual abuse during childhood - current state of Australian law on child suing parents
for equitable compensation for breach of fiduciary duty as result of an injury
sustained due to abusive conduct of parents – held: current state of Australian law was that respondent had no
maintainable cause of action against applicant - no point in waiting for trial
before applying law that does not support existence of cause of action – appeal allowed
– statement of claim struck out.
Pope (I)
|
Barry
v Queensland Building and Construction Commission [2015] QSC 50
Supreme Court of Queensland
Flanagan J
Building and construction – applicants
sought declaration that Direction to Rectify and/or Complete given by
Commission on 22/8/14 pursuant to Queensland Building Construction Commission
Act 1991 (Qld) was void – applicants contended direction was given out of
time – direction required to be given within 6 years and 3 months after completed
- time limit for giving directions – s72(8) – determination of what constituted
the building work to which the direction
relates - held: the building work to
which the direction relates was completed on issue of final certificate on
or about 26/8/08 – direction given by Commission was within time for purposes
of s72(8) – declaratory relief refused – application dismissed.
Barry (C G)
|
Lewis
Blyth & Hooper (a firm) v Smith
[2015] WASCA 47
Court of Appeal of Western Australia
Buss, Newness & Murphy JJA
Solicitors’ costs – costs agreements –
appeals from decisions in which primary judge cancelled two costs agreement
entered between respondent and firm pursuant to s222(2) Legal Practice Act 2003 (WA) – trial judge had determined that both
costs agreements were unreasonable solely on basis of finding that costs
estimate had not been provided – held: primary judge erred in approach to application of s222(2) - absence of provision
of costs estimate was one matter relevant to circumstances in which agreements “came
into being” but all circumstances in which they came into being had to be
considered – in addition other relevant circumstances had to be considered
before final evaluation could properly be made – family trust action costs
agreement was not unreasonable – no error in exercise of discretion in relation
to probate action costs agreement – appeal allowed in relation to family trust
action costs agreement – appeal dismissed in relation to probate action costs
agreement.
Lewis (I)
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