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  • Federal Court Requirements On Dispute Resolution, Litigation Lawyers Brisbane, Solicitors
    duty imposed If a lawyer is ordered to bear costs personally because of a failure to comply with the legislation the lawyer must not recover the costs from the lawyer s client Lawyers will be required to become more proactive in terms of exploring alternative forms of dispute resolution before civil proceedings are commenced in federal courts and will need to advise and assist clients in relation to taking genuine steps to try and resolve the issues in dispute between the parties before civil proceedings are commenced and then outline these steps in the form of a genuine steps statement or be in a position to provide reasons as to why no such steps were taken When a party commences proceedings it will need to file a statement saying what steps they have taken to resolve their dispute or if they have not taken any steps the reason why The proposed legislation doesn t set out specific actions that demonstrate genuine steps to resolve a dispute Instead the parties are given a wide discretion to attempt to resolve their disputes and the courts will have regard to these steps filed in the statement to the court before allowing proceedings to commence It is designed to ensure that the focus is on resolution and identifying the central issues without incurring unnecessary upfront costs and to focus lawyers and the parties on the early resolution of disputes Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Litigation Disputes in Queensland For Brisbane and surrounding areas including Ipswich Redlands Logan Redcliffe and Caboulture call 07 3229 4459 or email us Office Location and Contact Details Brisbane Aitken Whyte Lawyers Level 2 303 Adelaide Street

    Original URL path: http://www.awbrisbanelawyers.com.au/litigation-federal-court-requirements-on-dispute-resolution-lawyers-brisbane-solicitors_a.html (2015-11-27)
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  • Misleading and Deceptive Conduct in Property Transactions and Sales of Real Estate
    with the intention to mislead South Sky In a decision which contrasts with the Nifsan position South Sky Investments Pty Ltd v Hendrik Prins Sokham Prins 2011 QSC 175 South Sky a number of claims against Oracle developer South Sky Investments Pty Ltd failed on the basis that the prejudice suffered by the applicants was caused by inadequate contract terms The plaintiffs claimed that they had contracted to buy off the plan apartments in The Oracle whereas the apartment complex in question was to be branded by a different company They pleaded that South Sky failed to disclose the change of branding and this was a breach of the Body Corporate and Community Management Act 1997 Qld BCCM and that they would get substantially different products from what they had initially contracted for The court held that they failed to establish their case of inaccuracy of the BCCM disclosure statements and the inaccuracy found was not sufficient to cause material prejudice The court also placed more significance on the written terms of the contracts rather than the expectations of the buyers As the developers had delivered an apartment in a residential complex they had fulfilled their contractual obligations There was no right to termination and had the purchasers sought to rely on those expectations they should have incorporated them into the contracts This decision has since gone on appeal in the Queensland Court of Appeal and was dismissed with costs in favour of South Sky solidifying the position Current position of Queensland law The contrasting positions from the two Supreme Court matters will mean that until any further development of the law claims will be decided on a case by case basis South Sky makes it clear that where purchasers are hoping to rely on any and all representations made

    Original URL path: http://www.awbrisbanelawyers.com.au/litigation-misleading-deceptive-conduct-property-transactions-sales-real-estate-trade-practices-act.html (2015-11-27)
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  • Misleading and Deceptive Conduct Under the Australian Consumer Law, Litigation Lawyers Brisbane, Solicitors
    amount to misleading or deceptive conduct On the other hand however if it arises that an opinion promise or prediction was made intending to not be upheld or made without reasonable grounds the conduct will amount to being misleading In such a case the representor would be required to prove that reasonable grounds existed In determining whether conduct has a tendency to mislead or be deceptive it is first necessary to determine the characteristics of the recipient of the conduct For example where the audience is an expert the standard for determining whether the conduct is misleading or deceptive may be higher It is then a requirement to identify what responsibility that class of people owe to themselves to look after their own interests If it is the case that the conduct goes beyond the scope of taking reasonable care of the parties own interests and that the conduct is likely to mislead that particular audience it may be that misleading or deceptive conduct has occurred This provision has the potential to apply to a range of situations in particular it has been applied to misleading advertising in the media deceptive selling practices and statements made in the course of pre contractual negotiations It is important to remember however that the provision will only apply in trade or commerce This means that private dealings are not able to be captured by the scope of the provision Should you be concerned that there may be a dispute arising out of conduct before an agreement was entered and that led to the agreement being entered then speak to us for advice and what your rights may be We are engaged regularly in relation to disputes that involve allegations of misleading and deceptive conduct and have significant experience in handling matters of this

    Original URL path: http://www.awbrisbanelawyers.com.au/misleading-deceptive-conduct-australian-consumer-law-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Proceedings Dismissed For Delay, Commercial Litigation Lawyers Brisbane, Solicitors
    that if a party is required by the rules to take a step or to comply with an order by the court and fails to do so within a stated time in litigation the defendant or respondent may apply to the court for an order dismissing the proceeding for want of prosecution The defendant further relied on the Supreme Court of Queensland Act 1991 s 85 which states that if 2 years have passed since the last step was taken in a proceeding the court may dismiss the proceeding Steps Taken by Plaintiff s Counsel The last relevant steps taken by the plaintiff s solicitors were the filing and serving on the defendant of a fourth amended statement of claim on 6 December 2007 More than 18 months followed before any other steps were taken by counsel which was the serving of the plaintiff s list of documents on the defendant on 18 June 2009 however they failed to provide as prescribed under UCPR r 389 1 a notice of intention to proceed 1 month prior Reasons for Dismissal The ultimate result was that the proceedings were dismissed ending the litigation Andrews SC DCJ took into consideration many factors when reaching a determination including the fact that the delays caused the defendant to be constantly anxious and unable to plan Furthermore the fact that the original action was commenced back in 2001 and appeared prima facie difficult to win due to the plaintiff s onus to prove that certain conversations and events took place back in the 90 s which could only be attempted through the provision of oral evidence were considered unfair on the defendant Andrews SC DCJ rejected the Defendant s argument that the plaintiff had no relevant interest in the outcomes of the related proceedings however stated

    Original URL path: http://www.awbrisbanelawyers.com.au/proceedings-dismissed-lawyer-fails-to-take-appropriate-steps-within-timeframe-litigation-solicitors.html (2015-11-27)
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  • Proportionate Liability, Commercial Litigation Lawyers Brisbane, Solicitors
    by way of mortgage from Mitchell Morgan Nominees At the time Mitchell Morgan had a policy in place that required a borrower s solicitor to certify the identity of the borrower Unfortunately Caradonna s cousin was a solicitor who dishonestly certified a forged signature The mortgage secured the debt owed to Mitchell Morgan by reference to a loan agreement drawn up by Hunt Hunt the solicitors acting for Mitchell Morgan who also drafted the mortgage On the basis of the forged documentation a mortgage was registered over Vella s property as security for the loan and more than 1 million was advanced and fraudulently withdrawn by Caradonna Once proceedings were commenced in relation to the fraud Caradonna and his cousin were already bankrupt Mitchell Morgan then brought proceedings against Hunt Hunt for negligence as the loan agreement with Vella was void due to the forgery and therefore the mortgage essentially secured nothing Relevance to Proportionate Liability Initial Finding of the Court It was held in the abovementioned proceedings that Mitchell Morgan s claim against Hunt Hunt was an apportionable claim The primary judge held that Caradonna was primarily liable for 72 5 of Mitchell Morgan s loss His cousin was held liable for 15 and Hunt Hunt liable for only 12 5 of the loss Decision of the Court of Appeal On appeal it was then held that Hunt Hunt was not a concurrent wrongdoer as the fraudsters acts did not cause the loss claimed against Hunt Hunt The court concluded that the economic loss caused by the fraudsters was paying out money when it would not otherwise have done so while the economic loss caused by Hunt Hunt was not having the benefit of security for the money paid out Consequently Hunt Hunt was held liable for the whole of the loss High Court Decision It was then up to the High Court to determine whether the concept of proportionate liability should apply In doing so it was necessary to determine whether the loss or damage caused by the fraudsters and Hunt Hunt was the same As stated by Justice s French Hayne and Kiefel it is not a requirement of proportionate liability that the actions of one independent concurrent wrongdoer contribute to the negligence of another The question is whether each of them separately materially contributed to the loss or damage suffered The court came to the decision that while the cause of action by Mitchell Morgan against Hunt Hunt was different from the cause of action against the fraudsters the concept of proportionate liability did apply because the loss or damage suffered by Mitchell Morgan was its inability to recover the monies it advanced and the acts or omissions of all parties contributed jointly to that damage Importance of the Decision The decision in this case confirms that the concept of proportionate liability is appropriate to apply to such circumstances This effectively protects those who are not entirely to blame for economic loss or property damage by

    Original URL path: http://www.awbrisbanelawyers.com.au/proportionate-liability-commercial-litigation-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Removal Of Trustee, Failure To Perform Duty, Ordered To Pay Beneficiaries, Litigation Lawyers Brisbane
    fees An undisputed distribution from the trust made in 2011 was then said to have constituted the remainder of what was owed this distribution argued by the plaintiffs as being the only payment so far received under the trust Various records provided at the trial showed that Mr Wallerstein the plaintiffs father and son of the testatrix who was employed by the company controlled by the defendant set up an account in 1996 in the defendant s name to deal with estate monies The defendant later failed to keep the estate monies separate from those of his companies The Defendant argued that a journal provided as evidence was inaccurate in that it did not account for the wages paid to R and C the school fees paid to Mr Wallerstein and that while interest accrued it was not at a rate of 10 but what he called the market rate The trial judge was not satisfied that the wages paid were in fact advances under the trust regardless of the fact that the plaintiffs were clearly never employees This was particularly due to the fact that he failed to keep any record of them being payments under the trust while their names appeared a number of times as employees when payments were made In regard to the school fees the trial judge rejected the defendant s claims that they were paid out of the trust fund as at the time they were paid by Mr Wallerstein who was reimbursed from money in the company account there was no agreement to this effect This therefore meant that he did not exercise any discretion as trustee to make the payments for the benefit of R and C Finally in respect to the issue of interest the trial judge noted that the defendant s argument that the rate was the market rate would have been difficult to implement by Mr Wallerstein and that the only records of the interest rate were 10 and that would therefore be the applicable rate Determination Having rejected the arguments by the defendant the trial judge determined that outstanding amounts were owing to the plaintiffs under the trust The trial judge applied a compound rate of interest as the defendant had employed trust funds for his own business Removal As Trustee The remaining trustee under the age of 18 sought to have the Defendant removed as trustee and replaced with the person named in his grandmother s will if the Defendant were to default in his acting the Defendant did not consent to being replaced as trustee The trial judge found that there was a clear case for a new trustee as the Defendant had failed to provide a reliable set of accounts for these trusts and had mixed the trust funds with monies in his own personal bank account The judge stated that this showed that there can be little confidence that the Defendant will now diligently apply himself to the trusteeship of the fund Consequently the

    Original URL path: http://www.awbrisbanelawyers.com.au/litigation-removal-of-trustee-failure-to-perform-duty-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Setting Aside Default Judgments, Courts, Litigation Lawyers Brisbane, Solicitors
    in making the application to set aside the default judgment and a statement showing the nature of the defence that will be relied upon if the debtor is allowed to defend the action The debtor must show a prima facie bona fide defence on the merits The debtor is not required to detail the whole of the evidence going to the defence in the affidavit The affidavit simply requires the nature of the defence to be set out Applications to set aside default judgments are frequently granted This is because the courts prefer cases to be heard and determined on their merits rather than by default That being said the court must be satisfied that there is a defence to be heard and won t set aside a judgment if the defendant can t convince the court that there should be a hearing on the merits Following a successful application the court will require the debtor to file a defence within a fixed period of time Costs If the debtor failed to file a defence the court will generally order the debtor to pay the creditor s cost as a condition to setting aside the default judgment However if the creditor acted improperly to obtain the default judgment the court may require they pay the debtor s costs of the application to set aside the default judgment This may include where the creditor did not serve the statement of claim in accordance with the Rules The court may also order a party to pay any disbursements as well as professional costs Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Litigation Disputes in Queensland For Brisbane and surrounding areas including Ipswich

    Original URL path: http://www.awbrisbanelawyers.com.au/setting-aside-default-judgments-courts-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Unconscionable Conduct Under the Australian Consumer Law, Commercial Bank of Australia v Amadio
    faith If the court finds that s 21 is not applicable to the circumstances it will seek to apply s 20 and common law principles of unconscionability The test of unconscionable conduct was developed in the case of Commercial Bank of Australia Ltd v Amadio 1983 151 CLR 447 This test sets out two circumstances whereby conduct will be deemed unconscionable The first being when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary and secondly when advantage is taken of an innocent party who though not deprived of an independent and voluntary will is unable to make a worthwhile judgment as to what is in his best interest In the case of Commercial Bank of Australia v Amadio Mr and Mrs Amadio signed a guarantee and mortgage to guarantee the debts of their son s company They were Italian immigrants had little English and minimal formal education and business experience Their son Vincenzo lived an expensive lifestyle however was in fact in significant debt He had told his parents that the guarantee was for a period of 6 months and for 50 000 This was not the case Their liability was not limited in such ways in fact the bank had agreed to allow him to increase his overdraft A representative of the bank visited the home of the Amadio s to sign the relevant documents of the mortgage The Amadio s did not read the documents and the bank s representative failed to provide an explanation to Mr and Mrs Amadio about the documents that they were signing and the subsequent risks involved The representative did however point out that the guarantee was not limited to six months upon hearing the incorrect representation made by the Amadio s son In the days following the guarantee and mortgage being signed Vincenzo s overdraft increased from 189 000 to more than 270 000 Vincenzo s company continued to suffer financial losses and subsequently went into liquidation The bank then demanded that the Amadio s make good on their guarantee to pay the debts The Amadio s were unable to meet the obligations of the guarantee and a notice was given that the power of sale under the mortgage would be exercised The majority of the High Court of Australia held that the Amadio s had suffered a special disadvantage thus finding that the conduct of the bank was unconscionable Justice Mason stated that unconscionable conduct refers to a situation in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage In coming to their decision the Court took into consideration the special disadvantage suffered by the Amadio s as a result of their minimal ability to speak English lack of formal education and business experience and old age This special disadvantage suffered in conjunction with

    Original URL path: http://www.awbrisbanelawyers.com.au/unconscionable-conduct-under-the-australian-consumer-law-cba-amadio-lawyers-brisbane.html (2015-11-27)
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