Devil's in the detail : judgment highlights need for invoice transparency

This article considers the implications of the decision in Clayton Utz Lawyers v P & W Enterprises Pty Ltd [2011] QDC 5, and the meaning of "itemised bill" as defined in the Legal Profession Act 2007 (Qld).

Default, deadlock and remedies

The primary purpose of this chapter is to examine the effectiveness of common default provisions and the range of common law and equitable remedies available to a joint venture partner in the event of default by a co-venturer. Because of the various joint venture vehicles such as trusts, corporations, partnerships and others, it is proposed to deal only generally with these questions.

Supreme Court Act 1995 (Qld) s 253 - leave to appeal costs orders - appeal against substantive judgment insufficient - must be arguable case that discretion will be overturned on appeal

The recent decision of the Court of Appeal in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262 provides clear direction on the Court’s expectations of a party seeking leave to appeal a costs order.This decision is likely to impact upon common practice in relation to appeals against costs orders. It sends a clear message to trial judges that they should not give leave as of course when giving a judgment in relation to costs, and that parties seeking leave under s 253 of the Supreme Court Act 1995 (Qld) should make a separate application. The application should be supported by material presenting an arguable case that the trial judge made an error in the exercise of the discretion of the kind described in House v King (1936) 55 CLR 499. A different, and interesting, aspect of this appeal is that it was the first wholly electronic civil appeal. The court-provided technology had been adopted at trial, and the Court of Appeal dispensed with any requirement for hard copy appeal record books.

Early stage start-ups : evidence from the Comprehensive Australian Study of Entrepreneurial Emergence (CAUSEE)

In this chapter, the picture of Australian small business is supplemented by using data from the Comprehensive Australian Study of Entrepreneurial Emergence (CAUSEE) . This data tracks large numbers of on-going business start-ups over time. The Australian Centre of Entrepreneurship Research at Queensland University of Technology collected data in four annual waves. (Wave 1 to Wave 4) from 2007 to 2011. CAUSEE allows the analysis of entrepreneurial entrants at two stages of development, i.e. nascent and young firms. Nascent firms are defined as firms in the process of being created, but not yet established in the market, and young firms are defined as having been operational for up to four years. An analysis of nascent firms provides unique insights, as no other known Australian database captures and follows the development of business start-ups at the pre-operational stage. In addition, the project captured judgment over samples of high-potential start-ups.

Asset allocation policy, returns and expenses of superannuation funds : recent evidence based on default options

We examine the asset allocation, returns, and expenses of superannuation funds whose assets are mainly invested in default investment options between 2004 and 2012. A majority of these funds fail to earn returns commensurate with their strategic asset allocation policy. It appears that much of the variation of returns between the funds might be a result of their engaging in significant active management of assets. Our results indicate that returns from active management are negatively related to expenses. We also find strong evidence of economies of scale existing in these superannuation funds across different size categories.

Wrongful birth assessment of damages : judgment pending

Damages issues regarding the costs of raising the child argued in a case currently before the NSW Supreme Court - Waller v James litigation pre-dated the Health Care Liability Act 2001 and the Civil Liability Act 2002.

Wrongful birth assessment of damages : judgment pending

Wrongful birth - assessment of damages - overview of damages issues raised in current and previous litigation - breach of duty and causation - cost of raising a child - key damages assessment issues - application of civil liability legislation.

Are lifecycle funds appropriate as default options in participant-directed retirement plans?

The appropriateness of default investment options in participant-directed retirement plans like 401(k) has been in sharp focus given that most participants fail to nominate an investment option to direct their contributions. In United States (US), prior to the Pension Protection Act (PPA) of 2006, plan fiduciaries often selected a money market fund as the default option. Whilst this ‘low risk and low return’ investment option was considered to be a ‘safe’ choice by many fiduciaries who were fearful of litigation risk, it was heavily criticized for resulting in inadequate wealth at retirement, particularly when retirees were living much longer and facing inflation risk (see, for example, Viceira, 2008; Skinner, 2009)...

Improper coaching of witnesses costs defendant its judgment

In its judgment on April 11, 2005, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110, the NSW Court of Appeal overturned the decision of the District Court in favour of the defendant. The main ground for the decision of the Court of Appeal related to the conduct of the defendant's solicitors and its witnesses prior to trial. The Court subsequently referred the matter to the Legal Services Commissioner.

Supreme Court Act 1995 s48 - Interest on judgment for damages for personal injuries

The case of Flynn v The Maryborough Sugar Factory Limited [2003] QDC 446 the plaintiff had been awarded damages for personal injuries and there was a charge on those damages under a Commonwealth statute, with a provision in the statute that damages could not be satisfied until the Commonwealth had been paid. The Court considered the point of considerable practical significance of whether interest accrued on the judgment under s48 of the Supreme Court Act 1995 (Qld) before the defendant had obtained clearances under the Commonwealth legislation.

Summary judgment for plaintiff

The decision in Burke v Van Eeuwen (unreported, District Court of Queensland, No 1490/2002) reminds practitioners of the importance of an appearance for a party at any hearing of an application, even when a party's representatives may consider an opposing party is clearly not entitled to the order it seeks.

An experimental analysis of direction judgment in a curved corridor

An experiment was conducted to investigate direction judgment in a curved corridor. Each participant walked through the curved corridor. A direction was presented to participants at the entrance, and they were asked to point this direction at two points within the corridor. The present study proposed two hypotheses : (a) participants underestimate the change of their traveling direction while walking; (b) participants use four-direction reference axes (front, back, left, and right) for direction judgment. Both hypotheses were supported, and it was suggested that participants estimated the change of their traveling direction to be approximately 90% of the actual change.

Obvious error in approach to default costs assessment

The decision of Henry J in Ginn & Anor v Ginn; ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49 provides clarification of the approach to be taken on a default costs assessment under r708 of the Uniform Civil Procedure Rules 1999

Credit Default Swaps and Insurance: Against the Potts Opinion

Little attention has been given to the possibility that CDS transactions might be construed as insurance contracts in English law. This article challenges the widespread “Potts opinion”, which states that CDSs are not insurance, because they do not require the protection buyer to sustain a loss or to have an insurable interest in the subject matter. CDSs often do provide protection against loss that the buyer is exposed to; loss indemnity is not a necessary characterisation of an insurance contract; insurable interest does not form part of the definition of insurance, but is an additional requirement of valid insurance; and what matters is the substance not the form of the contract. The situation in the US and Australia is also briefly considered.