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Wednesday, 18 March 2015
Insurance, Banking, Construction & Government
A Daily Bulletin listing Decisions
of Superior Courts of Australia
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Executive Summary (1 minute read)
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)
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Summaries with links (5 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)
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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.
Page 3
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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