Product Detail

Vol31 No2 June-August 2017

Reflections on survival and success in litigation
By Hon Justice Stephen Robb

What should lawyers do to survive and even succeed in litigation? This is an important subject with no simple answer. Litigation defies generalisation.

Yet it is a subject that deserves consideration for many reasons. One reason is that, notwithstanding the conscientious efforts of the many lawyers involved, I have frequently witnessed cases that must have disappointed parties by reason of unexpected loss, delay and unnecessary expense. That is an experience that has been shared by many.

Another reason is that the successful conduct of unavoidable litigation (and, one might equally add, the wise avoidance of improvident litigation) is as much in the interests of lawyers as it is their clients. Lawyers can also suffer emotional, reputational and financial stress when litigation goes awry, as it unfortunately often does.

This subject should also be of interest to transactional lawyers, as they cannot sleep safely in their beds in the belief that the documents they have drafted lie snugly in the files sent to archives. I have seen many transactional lawyers sitting uneasily at the back of courtrooms while litigation lawyers struggle to make sense of their efforts.

 

‘Asset protection’, ‘associative mating’ and the long reach of s120 & 121 of the Bankruptcy Act. Who is a ‘creditor’?
By Lee Aitken

The decision in Turner in his capacity as trustee for the bankrupt estate of Wallace v Wallace dispels any naïve thought that a simple transfer of assets from the ‘high risk’ to the ‘low risk’ partner before some risky business venture had commenced would protect them in the event of the high flyer’s ultimate insolvency. It also highlights the present social problem arising from ‘associative mating’ — in the old days, the solicitor, brain surgeon or entrepreneur could be reasonably secure in holding all his assets in the name of his wife, the homemaker.

Now, with men and women both at risk of large scale professional negligence, or other disastrous claims, the possibility of using one spouse as a ‘safe harbour’ has disappeared. But even though the possibility of the use of such a ‘safe harbour’ has diminished, the complexities arising from ‘unscrambling’ the assets recovered by the trustee from a multiplicity of trust, ‘lien’, and other claims still makes the task complex, lengthy, and costly — matters made clear by Woods & Lombe as trustees of the Bankrupt Estate of Ulusoylu v Ulusoylu. This short article examines both matters. (It is appropriate to note that the judgment of Kelly J repays close reading as it contains a very detailed analysis of a large number of complex matters beyond the scope of this Note including how a trust might arise to the advantage of the transferee of property; and the interrelationship between the general avoidance provision under section 37A of the Conveyancing Act 1919, and sections 120 and 121).

 

Not just, quick or cheap: historic marine determination exposes systemic delays in NSW native title claims
By Elizabeth Pearson

 On 31 August 2017, the Yaegl People became the first Aboriginal traditional owners in New South Wales to have their native title rights and interests in the sea recognised by Australian law. The Federal Court handed down the historic consent determination in Yaegl People #2 v Attorney General of New South Wales on country in Yamba on the state’s north coast, marking the end of a 21-year battle to formally recognise the Yaegl People’s connection with their traditional lands and adjacent coastal waters. Jagot J warned that the delays experienced in claims like Yaegl #1 and #2 are symptomatic of an institutional failure in New South Wales to resolve native title claims as justly, quickly, inexpensively and efficiently as possible in accordance with civil procedure law. This paper considers the significance of this case for traditional owners, policy makers and business.

 

  • Reflections on survival and success in litigation
    By Hon Justice Stephen Robb
    page 3
  • 'Asset protection', 'associative mating' and the long reach of s120 & 121 of the Bankruptcy Act. Who is a 'creditor'?
    By Lee Aitken
    page 17
  • Not just, quick or cheap: historic marine determination exposes systemic delays in NSW native title claims
    By Elizabeth Pearson
    page 22
  • Member Price: $0.00
    Non Member Price: $30.00
    Total Price: $0.00        Total Quantity: 1  
     
    Main File Type pdf
    © Copyright 2017 Commercial Law Association of Australia (CLA) |  Site by ICAN Solutions