To opt-in or out – that is the question before the Supreme Court when Ross returns in March

New Zealand has no statutory or regulatory framework that specifically deals with class or representative actions, which is why NZ claimants have relied on High Court rules as the mechanism to bring a representative action. The Courts considered, before Ross v Southern Response Earthquake Services Limited, the rule permitted only an opt-in action for the group. […]

The combustible cladding crisis continues with Biowood

The New South Wales Civil and Administrative Tribunal (NCAT) decision in Taylor Construction  has put the spotlight on another form of combustible cladding – Biowood. With NCAT accepting that Biowood is a combustible building material that poses an undue fire risk, the Taylor Construction decision has had widespread coverage within the residential strata property industry so owners’ corporations […]

Decision confirms need to address clear criteria in pursuing direct recoveries against insurers

Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610 On 21 November 2019, the Supreme Court of NSW dismissed an application brought by the fourth and fifth defendant seeking leave for joinder of an insurer in place of a deregistered legal practice under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). This decision confirms […]

Tragic jetty fall case tests many civil liability issues

Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848 On 19 December 2019, the NSW Supreme Court gave judgment in a complex case involving multiple defendants, which followed a tragic accident involving a young child who fell from a jetty. Wotton + Kearney acted for the State of NSW in its successful defence […]

The critical role of decision makers in adverse action claims

The recent Full Federal Court of Australia decision, Australian Red Cross Society v Queensland Nursing Union of Employees [2019] FCAFC215, serves as a timely reminder of the importance of “decision maker” evidence in adverse actions claims. In this update, Wotton + Kearney’s Chris Mossman and Lisa Schumacher look at employers’ exposures around decision makers and ways […]

Federal Court orders defendant to pay indemnity costs for misconduct

BAM Property Group Pty Ltd as trustee for BAM Property Trust v Imoda Group Holdings Pty Ltd (No.2) [2019] FCA 2072 On 9 December 2019, the Federal Court ordered the unsuccessful defendants in a shareholder oppression action to pay the plaintiffs’ costs of the entire proceedings on an indemnity basis. In this update, Andrew Moore […]

NSW Court of Appeal provides guidance on applications for the determination of separate questions

On 21 November 2019, the NSW Court of Appeal re-exercised the Court’s discretion to determine the limitation defence as a separate question in a dispute between a lender and a valuation firm. The decision, in which Wotton + Kearney successfully acted for the valuation firm, provides guidance on when a separate question determination is appropriate. […]

Revisiting historical sexual abuse settlements in NSW

A recent decision of the Supreme Court of New South Wales in Magann v Trustees of the Roman Catholic Church of the Diocese of Paramatta [2019] NSWSC 1453 affirmed the “once and for all” effect of a 2007 deed of release between the applicant plaintiff (Magann) and respondent defendant (Diocese). This matter involved Mr Magann […]

More rights against those whose wrongs are not intentional

On 25 October 2019, The Victorian Court of Appeal found a claimant does not need to establish they have a “significant injury” to claim general damages if they allege they are the victim of an “intentional act that was done with intent to cause death or injury or that is sexual assault or other sexual […]

An honest day’s work for an honest day’s pay?

In this case, the High Court of Australia ruled a builder was not owed for variations for “work and labour done” after a building contract was terminated in Mann v Paterson Constructions Pty Ltd [2019] HCA 32. This decision shows that builders who fail to follow the formal variation process under the Act are at risk, as […]