A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Wednesday, 26 November 2014

Executive Summary (One Minute Read)
National Australia Bank Ltd v Smith (NSWSC) - misleading and deceptive conduct - breach of fiduciary duties - unjust contract - mortgages and guarantees set aside
Calvert v Badenach (TASSC) - solicitors' duties - solicitor's breach of duty to testator to advise in relation to risk of testator's family maintenance claim did not cause loss - unnecessary to decide whether duty also owed to beneficiary
Summaries With Link (Five Minute Read)
National Australia Bank Ltd v Smith [2014] NSWSC 1605
Supreme Court of New South Wales
Slattery J
Loans and mortgages - unjust contracts - company borrowed amount from bank to fund its purchase of business - principal and wife guaranteed company's loan obligations under various facilities - guarantors mortgaged family home to secure guarantee obligations - company defaulted - guarantors sold their property to reduce liability bank - bank claimed amount from guarantors - guarantors cross-claimed against bank on grounds guarantees were unjust under Contracts Review Act 1980 (NSW) and were occasioned by misleading and deceptive or unconscionable conduct within Australian Securities and Investment Commission Act 2001 (Cth) and Fair Trading Act 1981 (NSW) - held: guarantors able to set aside mortgages and guarantees they signed as part of bank transaction which they entered on grounds including misleading and deceptive conduct by bank through its officer, for breaches of fiduciary duty, for contraventions of ASIC Act and under Contracts Review Act - parties to bring in short minutes to give effect to reasons.
National Australia Bank Ltd
Calvert v Badenach [2014] TASSC 61
Supreme Court of Tasmania
Blow CJ
Solicitors' duties - legal practitioner took instructions from client for preparation of will - will prepared and executed by testator - testator left whole estate to plaintiff - testator died - testator made no provision for daughter- daughter made application under Testator's Family Maintenance Act 1912 (Tas) - judge ordered payment of amount out of estate - plaintiff contended solicitor and firm negligent in failing to advise testator of risk of daughter making claim and failing to advise him of options to arrange affairs so as to avoid claim which could disturb his testamentary wishes - held: Court accepted solicitor owed testator duty to take instructions in relation to possible claim under the Act and that he breached duty - Court not satisfied that had solicitor discharged duty to testator, testator would have taken steps to frustrate possible claim - Court therefore not required to decide whether solicitor owed  plaintiff, as an intended beneficiary, any duty to advise as to risk of claim being made or steps that could be taken to reduce or extinguish testator's estate in order to avoid consequences of such claim.