On 9 April 2015, the High Court of Australia refused special leave to appeal to the Court in Hudson Investment Group Limited v Atanaskovic (see [2015] HCASL 54). The High Court noted that the New South Wales Court of Appeal had held that it was not appropriate for the scope of the solicitors’ liability to extend to Hudson’s loss because Hudson’s loss was, in part, the result of Hudson’s own independent and unreasonable actions. The High Court said that no reason was shown to doubt the correctness of the Court of Appeal’s decision and, accordingly, an appeal to the High Court would enjoy insufficient prospects of success to warrant the grant of special leave to appeal. I previously wrote about the Court of Appeal’s decision on 18 August 2014 in a paper headed “The solicitor’s liability for loss arising from unclear or ambiguous drafting”.
Hudson Investment Group Limited v Atanaskovic – High Court refuses special leave to appeal
Family provision: Balcomb v Brownlee and the meaning of “full and final settlement”
The Supreme Court of New South Wales in Balcomb v Brownlee recently held that the phrase “full and final settlement” as used in an agreement to settle an ‘out of time’ family provision claim brought under Ch 3 of the Succession Act 2006 (NSW) meant that the settlement would exhaust the plaintiff’s claim completely and conclude the litigation between the parties and that this outcome could only be achieved by a Court-approved s 95 release. Read about the case here.
Class actions: When is the lawyer’s relationship with the litigation funder too close?
Representative or group proceedings (commonly known as ‘class actions’) are typically lawyer driven. As the costs can be substantial, the costs of such proceedings are increasingly being covered by litigation funders. In two recent cases, Bolitho v Banksia Securities Limited (No 4) and Moore v Scenic Tours Pty Ltd, the question arose as to whether the proper administration of justice required the Court to restrain the plaintiff’s lawyers from continuing to act by reason of their interest in, or connection with, the litigation funder. Read what was decided in those cases here.
Section 588FF(3) – the exclusive source of power to extend the time for bringing voidable transactions proceedings
In Grant Samuel Corporate Finance Pty Limited v Fletcher, the High Court of Australia has held that the bringing of an application within the time required by s 588FF(3) of the Corporations Act 2001 (Cth) is a precondition to the court’s jurisdiction under s 588FF(1) and that the only power to vary the time period in s 588FF(3)(a) is that given by s 588FF(3)(b). The High Court further held that the para (b) power cannot be supplemented, nor varied, by rules of procedure of the court to which an application for extension of time is made because s 588FF(3) “otherwise provides” within the meaning of s 79 of the Judiciary Act 1903 (Cth). Read about the case here.
Unrepresented litigant found to have abandoned a limitation defence
A person intending to present his or her case before a court without legal representation would be wise to first take a look at the case of Chapman v Colson, a recent decision of the Supreme Court of New South Wales, where an unrepresented litigant was found to have elected to abandon a defence based on the Limitation Act 1969 (NSW). Had the unrepresented litigant pursued the defence at the hearing of the matter, the plaintiff’s cause of action may have been statute barred and the unrepresented litigant may have been entitled to a judgment in his favour. Read about the case here.
