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  • When A Guarantee Must Be Evidenced In Writing - Who Can Be A Guarantor? Litigation, Disputes
    of personal liability for another s debt a collateral promise That means that if the debtor defaults the guarantor will then be personally responsible for discharging that debt or default Alternatively a guarantee can be made through the giving of a security such as a charge over the guarantor s property which will then give the creditor recourse to specific property to secure performance of the debtor s obligations Who can be a guarantor It is not possible for a debtor to also be a guarantor for the same obligation the debtor and guarantor must be different persons Further the existence of joint debtors is not the same as a debtor and guarantor situation However it is possible for joint debtors to agree between themselves separately from the creditor to be guarantors for each other s debts with those debts being treated separately and without prejudice by the creditor It has also been suggested that where a person unconscionably induces a creditor to believe that a contract of guarantee exists they will be estopped from denying this obligation if the creditor then acts on this assumption such as by releasing a security to the debtor Must the guarantee be evidenced in writing Where the guarantee is given by way of security over the guarantor s property it need not be in writing Where the guarantee is made to a creditor is collateral in nature and imposes a personal liability it must be evidenced in writing In these circumstances it must be in writing even where the guarantor is promising to give a guarantee upon the happening of a certain event such as delivery of goods or services Clearly the guarantee will only exist and need to be made in writing if the principal debtor still remains liable to the creditor

    Original URL path: http://www.awbrisbanelawyers.com.au/guarantee-evidenced-in-writing-guarantor-litigation-disputes-lawyers-brisbane-solicitors_a.html (2015-11-27)
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  • Professional Negligence Financial Advisers, Financial Planners, Accountants
    clear indication of the unsuitability of the financial advice given as they were in a period of transition where their income was in fact decreasing Tax reduction was not the main priority and in fact the main priorities of were to provide for income for the education of their children to grow their capital and increase wealth in real terms so that they could contemplate an early retirement and financial independence Income from the financial products invested in were meagre in comparison to the loss of their capital invested Losses in excess of 300 000 were incurred during the several years that the investments operated It was then that our clients decided to seek advice about their prospects of recovering funds from their financial planners to try to place themselves back in the position they would have been were it not for the negligent advices of the financial advisers A Claim and Statement of Claim in the District Court of Queensland was filed by our clients and this firm set about to pursue their financial advisers Our clients were ultimately able to settle with the Insurers of the financial advisers on terms that adequately reimbursed them for their losses and 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 Professional Negligence 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 Brisbane Ph 617 3229 4459 Fax 617 3211 9311 E enquiries awbrisbanelawyers com au Contact 07 3229 4459 Email Related Articles Professional Negligence Accountancy Financial Advice Professional Negligence Accountants Held Liable for Breach of

    Original URL path: http://www.awbrisbanelawyers.com.au/professional-negligence-financial-advisers-planners-accountants-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Professional Negligence - Accountants Held Liable For Breach Of Duty To Previous Shareholders Of Company - Law Article
    cheque to Pierce for that amount Pierce incorrectly claimed that this amount was insufficient and the accountants then prepared two additional statements ultimately leading the plaintiffs who relied on these erroneous statements to overpay Pierce Issues in the Case There was sufficient evidence in the case that seeking to recover the overpaid amounts from Pierce would not be an option It was therefore up to the court to determine whether the defendants could be held liable for negligence and ordered to repay the loss incurred by the plaintiffs The plaintiffs argued three things that there was a contractual relationship between the parties that there was a fiduciary relationship between the parties or that the defendants at least owed them a duty not to be negligent The defendants argued that their contractual relationship was with the company not with the plaintiffs personally and that no duty of care was owed to them Was there a contractual relationship The judge in the case arrived at the conclusion that there was a contractual relationship between the plaintiffs and the defendant accountants While the defendants argued that the contract was only with the company the judge determined that they were aware that the plaintiffs had assumed the company s debt and that the Sherdahl s were therefore looking to the plaintiffs not the company for the repayment of those debts Therefore in working to determine that amount of debt they were working for the plaintiffs not the company Further for that work the defendants were paid by the plaintiffs personally Was there a duty owed by the defendants to the plaintiffs It was held that as in the circumstances where a doctor or lawyer would owe a duty of reasonable care to a patient or client in rendering their services it was implicit in the contract between the parties in this particular case that a duty of reasonable care and skill was owed by the accountants to the plaintiffs Therefore the judge held that the plaintiffs would be entitled to damages if this implied duty of care was breached The judge felt it was unnecessary to determine whether a duty was owed outside of this implied contractual duty however did mention that had it been necessary to decide this it probably would have been determined that under the special circumstances there was a duty This was distinguished from the case of Candler v Crane Christmas Co where on similar facts no duty was owed This was because in that case the previous shareholder had no connection to the company when the information was given However in contrast the defendants in this case had the knowledge that the plaintiffs had recently been shareholders in the company and the information they were asked to provide was in regards to debts the plaintiffs had incurred in their capacity as shareholders It was remarked that based on that reasoning it was likely that the relationship between the parties was close enough to give rise to a duty of

    Original URL path: http://www.awbrisbanelawyers.com.au/accountants-held-liable-breach-of-duty-to-previous-shareholders-company-solicitors-brisbane.html (2015-11-27)
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  • Barristers Immune To Professional Negligence Actions By Solicitors
    proceedings and in the conduct of pre trial work not affecting the way in which the cause was to be conducted in court It was further argued that this same duty was also owed by the barrister to the solicitor and therefore indemnity or contribution should be ordered Outcome of Appeal The appeal was dismissed by the Supreme Court in a 2 1 majority judgment The main reason for the dismissal was that it was acknowledged that for the decision of the District Court to be overturned it would have to be determined that based on the statement of claim the solicitor did have a cause of action For that to be possible the immunity protecting the barrister from negligence claims would have to not apply to this situation in the sense that whatever negligence had caused the loss to the client would have to link sufficiently to out of court conduct not connected to the conduct of the trial Gleeson CJ in his reasoning on this point stated the principle of immunity which applies in such a case cannot be circumvented by drawing fine distinctions between the preparation and the conduct of the case It was therefore held that the common law immunity of barristers from liability for in court conduct extends to out of court work intimately connected with or ancillary to the conduct of the case in court Dissenting Judgment Priestley JA gave a dissenting judgment in which he argued that the appeal should be allowed on the basis that a cause of action potentially existed and therefore the case needed to be properly heard in the court While he did emphasise that his decision said nothing about the prospects of success if the case ever reached a trial and highlighted that the solicitor would have difficulty in proving a causal link between the out of court conduct and the damage suffered he argued that it was incorrect of the District Court to strike out the claim on the basis that there was no cause of action He stated that the reason the claim was struck out originally was because at least part of the claimed professional negligence was clearly in court conduct and therefore the whole of the damage flowed from that and the immunity rule applied leaving no cause of action However he argued that it seemed appropriate to regard the statement of claim as alleging that a substantial amount of the breach flowed from the out of court conduct and therefore the appeal should be allowed Taking into consideration both the outcome of this case as well as the dissenting judgment delivered by Priestley JA it appears that while barristers are clearly protected in most cases against negligence for their conduct in a case as it relates to services they perform in court if it can be proved that the negligent conduct leading to damages was sufficiently disconnected from their conduct out of court and in preliminary matters linked to their in court conduct

    Original URL path: http://www.awbrisbanelawyers.com.au/barristers-immune-to-professional-negligence-breach-of-duty-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Builder Liable For Negligence To Subsequent Owners Of Home For Pure Economic Loss, Solicitors, Brisbane
    of the house at the time when those defects become noticeable Therefore provided there is no intervening negligence or other event the causal proximity between the loss and the builder s professional negligence would be sufficient to uphold the duty of care The Issue of Pure Economic Loss If damage or injury to Mrs Maloney s property or person had occurred the builder would have been liable in tort for the inadequate footings regardless of who was the owner of the home The issue in this case was the fact that the nature of the loss incurred was purely economic which is not usually recognised as grounds for damages in negligence However the court held that the builder s duty of care would have extended to protecting the original owner from such economic loss so it was then necessary to determine whether that would extend further to subsequent owners of the house While the floodgate argument quoted above for not recognising liability for economic loss was highlighted by the court it was stated that the type of economic loss sustained by Mrs Maloney in this case was possibly even more foreseeable than personal injuries that may occur due to part of the house itself collapsing for which the builder would be liable Further as it was reasonable to assume that a sufficient degree of proximity would exist between the builder and first owner of the home for liability for such loss there would be no grounds to believe that extending that liability to subsequent owners would make it more likely to give rise to liability for an indeterminate time to an indeterminate class This was noted as being particularly true where the liability would otherwise depend simply on when the original owner chose to sell the house before or after the defect became apparent Also while the time span for liability to subsequent owners could arguably be for an indeterminate time it was noted that this element would come down to reasonableness in regards to foreseeability and the content of the duty of care The court stated that this duty would be the builder of a house undertakes the responsibility of erecting a structure on the basis that its footings are adequate to support it for a period during which it is likely that there will be one or more subsequent owners Such a subsequent owner will ordinarily have no greater and will often have less opportunity to inspect and test the footings of the house than the first owner Such a subsequent owner is likely to be unskilled in building matters and inexperienced in the niceties of real property investment Any builder should be aware that such a subsequent owner will be likely if inadequacy of the footings has not become manifest to assume that the house has been competently built and that the footings are in fact adequate In other words it is foreseeable enough that a builder should know such economic loss would be caused due to

    Original URL path: http://www.awbrisbanelawyers.com.au/builder-liable-for-negligence-to-subsequent-owners-of-home-for-pure-economic-loss-solicitors-brisbane.html (2015-11-27)
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  • Professional Negligence - Expired Limitation Period, Brisbane Lawyers, Solicitors
    loss a court which seeks to put him back in the same position must assess as best it can whether or not the cause of action would have yielded a judgment or a settlement and if so how much the plaintiff would have received and when It may be necessary to conduct a trial within a trial to determine what the cause of action would have produced That is what the cause of action was worth to the plaintiff Therefore in assessing whether Mr Horne was owed damages by his former law firm it was necessary to determine whether his original claim for personal injuries against the BAC would have been successful as the defendants argued that their failure to file the claim was of no consequence because the claim itself had no prospects of success They argued that there was no breach of duty by the BAC to have maintained or repaired the part of the road where Mr Horne fell and that even if some liability could be established his prospects of success were still minimal Further it was argued that Mr Horne s case would have suffered due to issues with his credibility and contributory negligence and that any claim would have been futile anyway as the damages awarded would have been insignificant Outcome of Proceedings Against the Solicitors Devereaux SC DCJ determined that while there were inconsistencies in Mr Horne s story in regard to the events surrounding his injuries the hole in the ground was somewhat obscured due to leaf litter and dappled light He then went on to examine what if any duty was owed to Mr Horne by the BAC in regard to the hole in the road He determined that while the risk of such an injury occurring due to the hole was slight it was of considerable magnitude and could lead to economic loss However he remarked that it was far from clear that a court would be satisfied that the BAC was in breach of their duty to Mr Horne and even if they did conclude this issues with respect to contributory negligence would be raised where they believed Mr Horne was simply not paying attention and potentially contributed to the severity of his injuries There were further issues for Devereaux SC DCJ to consider in determining a suitable outcome as Mr Horne had a history of medical and psychological issues that may have played a role in his ability to work in the future and the severity of his injuries There were conflicting medical reports provided in regard to his physical state and the possibility of exaggeration of his injuries and already existing ailments However Devereaux SC DCJ came to the conclusion that had a court heard Mr Horne s initial claim it would have determined that he suffered as a result of his fall combined with his existing conditions and that he should be compensated Essentially Devereaux SC DCJ determined that Mr Horne had approximately one third of

    Original URL path: http://www.awbrisbanelawyers.com.au/professional-negligence-expiry-limitation-period-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Disclosure Of Legal Professional Privilege In Professional Negligence Claim Against Lawyers - Law Article
    that informing the plaintiffs of the existence of the right of way would have been inconsequential to their decision to purchase the property They based this belief on their knowledge of the plaintiffs purchasing habits after having acted six times for them previously in similar transactions where the plaintiffs went against the firms advice and made arguably risky purchases The Issue The issue for determination in the court proceedings was in regards to the defendant s application to add this prior knowledge of the plaintiffs to their defence If allowed to do so the problem was that in then proving this they would have to rely on evidence from previous dealings between the firm and the clients Such evidence would generally be excluded in court proceedings due to legal professional privilege The issue for determination was therefore whether the documents relating to the previous retainers between the parties were permissible as evidence in the current proceedings The plaintiffs argued that the retainer of a solicitor is a separate retainer for each transaction even if they act on their behalf for numerous transactions Consequently they argued that while there may be an implied waiver of professional privilege where the client brings proceedings for professional negligence against the solicitor that waiver only extends so far as to those documents related to the particular transaction in question Decision Ultimately the court held that the appeal should be allowed and that the evidence produced by the previous dealings between the parties in similar transactions was permissible The court accepted that an implied waiver of legal professional privilege occurred where a client commenced proceedings for professional negligence against their solicitor It was then up to the court to determine how far this waiver extended and whether evidence from previous transactions between the parties should be allowed Their conclusion that such evidence should be allowed in the present case stemmed from the belief that in denying this the law firm was being denied the opportunity to properly defend themselves and to use a defence that was legitimately open to them This defence was that the evidence may lead to the plaintiff s inability to satisfy the court that had they been properly advised they would not have purchased the property in question This would prevent their claim for substantial damages 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 Professional Negligence 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 Brisbane Ph 617 3229 4459 Fax 617 3211 9311 E enquiries awbrisbanelawyers com au Contact 07 3229 4459 Email Related Articles Professional Negligence Accountancy Financial Advice Professional Negligence Accountants Held Liable for Breach of Duty to Previous Shareholders of Company Barristers Immune To Professional Negligence Actions by Solicitors Builder Liable for

    Original URL path: http://www.awbrisbanelawyers.com.au/disclosure-of-legal-professional-privilege-in-professional-negligence-claim-against-lawyers.html (2015-11-27)
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  • Engineers, Builders - No Liability In Professional Negligence To Subsequent Owners Of Commercial Buildings For Structural Defects
    to use structural footing sizes provided by the builder Nature of the Loss The loss suffered in this instance was of significance as it was pure economic loss Had the loss related to personal injury or property damage as a result of the defects in the building then the issue of liability would have been more clear However because the defects had been identified steps could be taken to prevent that type of loss and therefore the only loss that could be argued was that of pure economic loss due to the depreciation of value in the building The issue the courts have with allowing recovery for pure economic loss where all that can be shown is negligence and that the loss was foreseeable is that it opens up the potential liability for an indeterminate amount for an indeterminate time to an indeterminate class Many of the cases that have allowed for such recovery have placed an emphasis on the vulnerability of the plaintiff in terms of being unable to protect themselves from incurring such loss In this appeal the court drew a distinction between this case and the case of Bryan v Maloney a case where economic loss was deemed recoverable by a subsequent purchaser of a house Unlike that case here it could not be found that the respondent owed a duty of care to avoid such economic loss to the original owner The original owner in fact directly ignored certain recommendations by the respondent engineers in regards to planning and testing required for the design process Therefore there was no existence of a non detailed contract where it might be expected that heavy reliance was being placed on the engineers to correctly carry out a duty of care as was the case in Bryan v Maloney For this reason a duty to subsequent owners could not be argued by analogy to a duty that was owed to the original owner Issue of Vulnerability There was no evidence on the facts that the appellants were particularly vulnerable and unable to protect themselves from the damage suffered While it was conceded that the appellants probably did not know of the issue with the foundations when they bought the building there was no evidence to suggest that they would not have been able to obtain this information Further there was nothing in the contract of sale protecting them from such loss and no evidence to suggest that as in Bryan v Maloney the purchase was a very significant investment Outcome of Appeal It was held that the facts of this case were in a different factual context to those of Bryan v Maloney and that a duty could therefore not be argued by analogy to that case The appellants were not in a position of particular vulnerability and no rights had been conferred to them by the original owner through the sale contract Therefore allowing recovery for pure economic loss in this case would open the floodgates to claims by

    Original URL path: http://www.awbrisbanelawyers.com.au/builders-engineers-architects-commercial-buildings-structural-defects-professional-negligence-claims-brisbane-lawyers-solicitors.html (2015-11-27)
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