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  • Informal Wills Qld, Suing Solicitors, Negligence
    against Mr Howe seeking damages on the grounds that Mr Howe breached his duty of care to Mr Fischer as an intended beneficiary under the new will Mr Fischer claimed that Mr Howe had breached this duty by failing to have Mrs Fischer sign an informal will Judgment At first instance in the New South Wales Supreme Court Adamson J held that Mr Howe owed a duty to Mrs Fischer to draft an informal will Additionally Mr Howe also owed a duty of care to Mr Fischer as an intended beneficiary The Court concluded that Mr Howe had been negligent in failing to have Mrs Fischer sign an informal Will at their first meeting upon taking her instructions and subsequently awarded damages to Mr Fischer On appeal to the New South Wales Court of Appeal however the Court overturned this decision finding that although Mr Howe owed Mr Fischer a duty of care as an intended beneficiary this duty had not been breached The Court held that the scope of Mr Howe s duty of care to Mr Fischer was to be determined by Mr Howe s retainer which was to take reasonable care to prepare and execute a formal will for Mrs Fischer Therefore any breach of this retainer by failing to take reasonable care would also constitute a breach of Mr Howe s duty to Mr Fischer In determining whether Mr Howe had breached his duty owed under the retainer and whether an informal will was require the Court considered there to be two reasonable steps that should be taken to achieve the duty under the retainer Firstly the solicitor must fulfil the obligation to make a formal will in the timeframe agreed upon between the parties Secondly the solicitor must take steps to avoid any reasonably foreseeable frustration that may arise in carrying out the making of a formal will In considering whether Mr Howe had fulfilled his obligation to prepare a formal will within the agreed timeframe the court first considered the express terms of the agreement The court heard evidence that between 1982 and 2009 Mrs Fischer had made at least nine formal wills On each of these occasions Mrs Fischer would provide the solicitor with her instructions and the solicitor would later draft the will and provide her with a draft and once finalised would have the will signed and attested The court concluded that Mrs Fischer was familiar with the process and that she had intended on following this same course in relation to will she had retained Mr Howe to draft Additionally as it was agreed upon by both parties she understood that Mr Howe would return in two weeks with a draft will this would enable the three other people Mrs Fischer wanted at the meeting to be present As there was a clear process and time frame agreed upon by both parties the Court held that there was no express agreement requiring Mr Howe to give immediate effect to Mrs

    Original URL path: http://www.awbrisbanelawyers.com.au/informal-wills-qld-estates-suing-solicitors-negligence-brisbane-lawyers.html (2015-11-27)
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  • Insurance Broker Liable For Failing To Ensure Full Coverage And Warn Client Of Lack Of Insurance
    therefore brought proceedings against the insurance company and Mr Campbell as his broker and agent for failing to provide adequate insurance coverage as requested The trial judge held that the insurance company was not liable as the loss was not covered by the insurance policy however the broker was held liable for breach of contract and negligence professional negligence Damages were awarded for breach of contract and the agent appealed Professional Negligence and Breach of Contract The issue for determination on appeal was whether the broker and agent was liable even though there was no actual contract between the parties requiring the agent to secure full coverage The determining of the issue of whether a contract existed was circumvented by the court on appeal by focussing on the finding of professional negligence Letters given in evidence at trial between the insurance company to Mr Campbell proved that he must have at least been aware of the existence of the pumps one of which lead to the damage as well as the lack of coverage for any of the pumps Further it was clear that the insurer and Mr Campbell were aware that the pumps operated in conjunction with the boilers and that it would be reasonable and expected that the plaintiff would assume the boiler policy applied to the pumps as well unless told otherwise which he was not The letters also suggested that Mr Campbell would have been aware of the critical importance of the service pumps to the heating system Mr Campbell argued that even if he had included the pumps in the insurance contract the exclusion of damage caused by wear and tear would have prevented the plaintiff from recovering anyway However the court on appeal held that this was not a valid defence as it was Mr Campbell s duty to either procure such coverage or draw Mr Fine s attention to his inability to do so This failure constituted professional negligence and breach of duty and Mr Fine was therefore entitled to damages and the appeal was dismissed The important points that came from this case were that an insurance agent and insurance broker has a duty to act with a certain degree of care and skill when securing a policy for a client When not given specific instructions on the type of policy required as was the case here but the agent or broker agrees to ensure full coverage the broker then has a responsibility to familiarise themself with the business in order to assess all foreseeable risks and then adequately insure against them When such a policy is unable to cover all foreseeable risks the agent then has a duty to inform the client that they are not fully covered for such risks 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

    Original URL path: http://www.awbrisbanelawyers.com.au/insurance-broker-liable-failing-to-ensure-full-coverage-warn-client-law-articles-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Insurance Broker's Professional Negligence, Breach Of Contract - Brisbane Lawyers
    obtained by the Broker Suncorp admitted their liability to indemnify Strategic for the damage but invoked the sub limit clause and therefore only paid 200 000 The cost of repairing the damage to the building was significantly greater than 200 000 Following this Strategic took the matter to the Supreme Court and sought to challenge the payout figure It was found that as Suncorp had correctly fulfilled their obligations under the insurance policy Strategic was unsuccessful in recovering further funds from them Claim Against the Broker Following their unsuccessful action against Suncorp Strategic then sought action in the Supreme Court against the insurance broker on the grounds that they had arranged a policy with a sub limit which was inadequate given the value of the building failed to advise Strategic of these limitations so that they could obtain further coverage and failed to follow instructions to obtain the broadest coverage possible Further Strategic also claimed that the Broker had engaged in misleading or deceptive conduct contrary to the Corporations Act by representing that the coverage under that policy was on the best terms available at the time The court held that it was an implied term of the retainer between the broker and Strategic that the broker would exercise all reasonable skill care and diligence in and about the provision of insurance broking services and that ultimately the broker had breached that duty It was also held that the broker owed the client a duty to give advice in relation to the availability of different types of cover the nature of limitations on that cover as well as the risks of the proposed cover having regard to the value of the building being insured As well as the breach of duty outlined above it was also held that the broker failed in any way to explain the sub limit to the client The court reached the conclusion that at the very least the broker had a duty to read the policy examine what it said about sub limits and to advise that the effect of the sub limit would be that if accidental damage occurred then despite the listed value of the building only 200 000 could be recovered Further it was held that the broker could and should have obtained cover with a much higher sub limit and that had Strategic been aware of this they would have paid higher premiums for more adequate cover Broker s Defence The broker attempted to rely on a defence under the Civil Liability Act pleading that it was a professional acting in a manner that was widely accepted by peers in the profession as competent professional practice However no evidence was given to support this and in fact expert evidence contradicted this claim Therefore the broker was found to be in breach of his duty to Strategic through his failure to obtain adequate insurance or to at least inform the client of the effect of the sub limit clause Call Aitken Whyte

    Original URL path: http://www.awbrisbanelawyers.com.au/insurance-broker-liable-professional-negligence-breach-contract-brisbane-lawyers.html (2015-11-27)
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  • Insurance Broker's Professional Negligence - Liable To Client For Insurance Company's Refusal To Pay Claim
    Kotku also claimed that if Vero was not liable then the broker should be found liable for negligence and breach of contract The Case Against the Insurer Vero argued that the misrepresentation of the broker breached Kotku s duty of disclosure under the Insurance Contracts Act Further they argued that had they been aware of the level of flammable material in the building they would not have insured Kotku s business On this basis Vero claimed that they were not required to indemnify Kotku under the insurance policy The court agreed and held that OIB had selected the incorrect answer to the question regarding flammable material and in doing so had breached Kotku s duty of disclosure to Vero The court was also satisfied that had the broker correctly represented the amount of flammable material in the business Vero would not have granted the insurance policy to Kotku Accordingly it was held that Vero was entitled to reduce its liability under the policy to nil and Kotku was unsuccessful in its indemnity claim The Case Against the Broker Following the unsuccessful claim against the insurer it was then up to the court to determine whether Kotku could recover damages from the broker OIB had initially argued that they were never asked the question regarding flammable material However in finding that Vero was not liable the court had already decided that OIB had caused Kotku to breach their duty of disclosure in regards to this question The court then went one step further and stated that the importance of EPS the flammable material in question to the process of obtaining insurance at the time these events occurred was a well known fact in the insurance broker industry The court consequently held that not only did OIB breach Kotku s duty of disclosure to Vero with the online form but also breached their contract and duty of care to Kotku by failing to make adequate investigations into the presence of EPS in Kotku s business premises Even in the face of evidence that suggested Kotku may have been aware of the significance of EPS in the insurance process it was still held that OIB had an obligation to inquire of its clients about the extent of EPS in the construction of the building Further evidence was given by the broker that if Vero had declined to insure Kotku as it would have done had OIB correctly answered the online application OIB could have obtained the same level of insurance for Kotku elsewhere The court therefore concluded that the broker failed to discharge its contractual duties to its client as well as breaching the duty of care it owed under general law As a direct result of these breaches the insurer was able to reduce their liability to zero resulting in a loss of more than 2 000 000 to Kotku The broker was ordered to pay the insurance indemnity Kotku would have received from Vero had the broker not acted negligently Call

    Original URL path: http://www.awbrisbanelawyers.com.au/professional-negligence-insurance-brokers-liable-to-client-for-insurance-company-refusal-to-pay-claim.html (2015-11-27)
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  • Lawyers Sued For Failing To Warn Of Possibility Of Nil Recovery, Brisbane Professional Negligence Lawyers, Solicitors
    the misleading assurance by his solicitors that he would succeed and receive the sum of 95 000 from Mr Robertson Based on this belief Mr Campbell invested a significant amount of money into the purchase of horses and a property on which to set up a horse breeding business as well as selling his Carina home Outcome of Trial In the original trial against the solicitors for negligence the trial judge found that the solicitors had breached their duty to their client Mr Campbell s lawyers had assured him that he would receive 95 000 from his original claim which was agreed by the trial judge as the amount owed by Mr Robertson However the trial judge reached the conclusion that based on the personalities and personal relationship between the parties and the likely inability of Mr Robertson to pay the full amount the court would only have enforced 35 000 as the recoverable amount Accordingly Mr Campbell was awarded 35 000 to be paid by his solicitors as the sum he would have attained had the proceedings against Mr Robertson been conducted competently He was awarded an additional 350 000 for the loss suffered by Mr Campbell as a result of the business decisions made in reliance on the false assurance by his solicitors that money would be received from the claim against Mr Robertson Outcome of Appeal The appeal by the solicitors was in relation to the amount of damages owing to Mr Campbell as a result of their negligence the finding of their negligence being undisputed In the appeal the amount of damages was reduced to allow for the possibility that Mr Campbell would have made the same business decisions that led to his substantial loss with or without the assurance of his law firm in regard to his claim Account was also taken of the fact that whether money was received or not the business itself still would have been likely to fail resulting in a loss It was also argued by the appellant lawyers that the two amounts awarded at trial constituted the award of duplicate damages in allowing for a sum to be given for what would have been recovered as well as a sum for bad advice While it was admitted that there was ambiguity in the trial judge s reasoning it was determined that the general premise was that each figure flowed from distinct breaches by the law firm one to do with the conduct of the Robertson suit and one to do with their failure to warn This case highlights the result and possible remedies in a case involving lawyers professional negligence not just in failing to competently argue a case but then also in failing to appropriately advise a client of their prospects of success It also demonstrates the importance of having reliable and competent legal representation to ensure the best result is achieved in the first place as can be seen the potential remedy that would have been available

    Original URL path: http://www.awbrisbanelawyers.com.au/lawyers-sued-failing-to-warn-of-possibility-of-nil-recovery-professional-negligence-brisbane-solicitors.html (2015-11-27)
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  • Overpaid Tax - Sued For Damages For Loss Of Use Of Money In Professional Negligence Claim v. Accountants
    accountants for the loss incurred as a result of not having this amount at the time when they should have that being the extended period during which the accountants negligently caused it to be paid in tax This claim regarding the loss of the money was therefore essentially a claim in damages for a delay in receiving damages As stated in the appeal the law never usually allows an increase in damages in a claim in tort professional negligence and or breach of contract duty when there is a delay in receiving damages such as from delays in litigation or negotiation as the loss from that kind of delay is not directly related to the negligence or breach of contract itself and is therefore not recoverable Decision at Trial At the initial trial the court held that the loss of the use of the money was within reasonable contemplation of the parties a contractual test and should therefore be taken into consideration when assessing damages They concluded that had the money not been lost it would have been put toward the business shared by the partners most likely through the paying off of expensive loans Therefore the value of this loss was assessed as the interest rate on the most expensive loan which was 20 However to accommodate for the possibility that not all of the lost money would have been put towards the business this figure was reduced Result of the Appeal The defendants appealed the decision regarding the payment of damages for the loss of use of money In the appeal the court stated that the obligation on the part of the accountants was to exercise reasonable skill and care in the preparation of the respondents income tax returns Following on from that any loss suffered as a result of that obligation was payable in damages but any delay in the payment of those damages was not a breach of that obligation Therefore the question to be answered was whether the loss was sufficiently foreseeable and therefore not too remote It was held that the accountants clearly through their own professional negligence caused overpayments of tax by the respondents Consequently it was a direct and foreseeable consequence of that negligence that money which otherwise would have been available were it not for those overpayments and could have been used on repayments of significant loans by the business Therefore in this case the loss suffered was so directly related to the wrong that the loss cannot be classified simply as due to the late payment of 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

    Original URL path: http://www.awbrisbanelawyers.com.au/overpaid-tax-sued-damages-loss-of-use-of-money-accountants-law-articles-lawyers-brisbane-solicitors.html (2015-11-27)
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  • Pest Inspectors Professional Negligence, White Ant Reports and Building Reports, Breach Of Contract, Solicitors, Lawyers, Brisbane
    would have meant that the client would not have bought the property or if they had would have negotiated significantly reduced prices In one matter that was before the courts the Plaintiff purchased a house that was about 70 years old with a condition on the contract that the seller would provide a white ant inspection report The report that was given said that there was nil white ant activity Settlement occurred and shortly afterwards only a matter of weeks the plaintiff engaged a worker to carry out some minor alterations and at such time they discovered considerable termite activity and damage They took an action in negligence because they had not engaged the inspector directly they didn t have a cause of action for breach of contract and an expert gave evidence that the termite activity would have been active for at least 2 or 3 months including when the inspection was undertaken and that termites had in fact been located and treated some months before The defendant the inspector could give no reason why he had overlooked the damage caused by the termites The Court considered that the pest controller should have regarded the area being the roof as an important area of inspection and should have detected the tell tale signs of termite activity The failure to do so amounted to a breach of his duty of care he owed to the plaintiff and the damages were awarded being the amount of the repair costs for the termite damage 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

    Original URL path: http://www.awbrisbanelawyers.com.au/pest-inspectors-professional-negligence-brisbane-lawyers-solicitors.html (2015-11-27)
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  • Professional Negligence - Share Broker Ordered to Pay Damages for Failure to Sell Shares as Instructed
    and do something about it However by this stage it was too late to sell the shares at that price and the next day only 450 shares were able to be sold at the price Following this the appellant contacted the broker s manager and was informed that there was no fund established to account for employees mistakes breach of duty and or negligence and was unable to get a straight answer as to what the manager planned to do in regards to dealing with the matter A number of weeks later the appellant sent a letter to confirm that the order to sell the remaining shares at that price still stood before cancelling the order the following month after none were sold and eventually receiving his share certificate back Consequently the appellant then commenced an action against the respondent for his failure to act as instructed Trial Outcome The trial judge reached the conclusion that the appellant elected to retain the shares as his own when he stated Well you had better get busy and reinstate the order make it alive and do something about it The judge stated that had the appellant instead instructed him to sell at that time he would have taken a loss of 15 cents per share due to the failure of the share broker and therefore that was the only damage he could claim Accordingly this significantly smaller amount without costs was awarded at trial and he appealed claiming he should be entitled to the loss of the shares at 3 40 each Appeal Outcome In the appeal the broker argued much like the trial judge that the appellant elected to treat the shares as his own property by instructing the sharebroker to do something about it and therefore was not entitled to damages as he chose to take a risk that the shares would rise in price rather than immediately selling at that time when the price was lower than he stipulated On appeal the court took the view that the appellant s statement was not for the purpose of retaining the shares and accepting the drop in the market price but confirmation that he was insisting upon the respondent fulfilling his obligation of selling the shares at 3 40 each or compensating him if that was no longer going to be possible The court held that the appellant at no time waived his rights against the respondent and did not fail to exercise his duty to mitigate by not selling the shares when he received his share certificate back because at that point they were of no value Accordingly the share broker was ordered to pay damages for the amount lost due to his failure to sell at the stipulated price less commission and tax In return the appellant was ordered to allow the respondent to have the shares themselves Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or

    Original URL path: http://www.awbrisbanelawyers.com.au/professional-negligence-share-broker-pay-damages-failure-to-sell-shares-as-instructed-lawyers-solicitors-brisbane.html (2015-11-27)
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