Events

CPD units: 1

Knowledge area: Substantive law

Capacity issues often come up in estate planning and estate disputes in NSW, especially when a client is older, unwell, reliant on other people, or wants to make a major change to their will or estate arrangements. Lawyers need to be careful to identify which type of legal capacity is relevant. This may include capacity to make a will, capacity to appoint an enduring power of attorney or enduring guardian, capacity to give legal instructions, and capacity to enter into transactions while alive. If capacity concerns are not recognised, properly assessed and clearly recorded, a will, transaction or appointment may later be challenged, and the lawyer’s conduct may also be questioned.

This webinar will ventilate some of these issues, as well as consider some of the things which can lead to disasters including lack of good and proper medical or expert evidence or opinion, poor file notes, inappropriate or conflict-ridden ways of taking instructions, failing to investigate suspicious circumstances, memory and cognitive issues, along with an assessment of a client’s capacity to actually understand and act autonomously, when making decisions.

Facilitator: David Papallo, Solicitor Director, Papallo Kouchoo Lawyers

CPD units: 1

Knowledge area: Substantive law

There are three words that should always be front and centre when pleading an effective claim under the Design and Building Practitioners Act 2020 (DBPA) for breach of duty, and in turn under the Civil Liability Act 2002 (NSW) (CLA): particularisation, particularisation and particularisation.

Many practitioners still appear to think that pleading a DBPA claim and preparing a quick ‘list statement’ remains business as usual, at least in the sense that a claimant can rely on bare minimum pleadings to pass muster.

That has not been the position in the Supreme Court of New South Wales for some time.

Claims for breach of duty under section 37 of the DBPA must not only be fully particularised, but must also plead the specific provisions of the CLA, because a breach of the duty of care claim is, plainly, a negligence claim.

The need for thoroughness applies to the accompanying tables, whether they take the form of ‘Loulach’ or the more familiar Scott schedules.

It is not enough simply to identify defects and lay them at the feet of an alleged wrongdoer, particularly where there are multiple defendants. The alleged wrongdoing of each defendant must be set out with precision, including what each did, what each failed to do, and what each ought to have done.

In this brief but intensive webinar, Richard Kouchoo, Solicitor Director, Papallo Kouchoo Lawyers, will step through some of the key dos and don’ts in this area. Its aim is to help practitioners maximise their prospects of withstanding any challenge to pleadings of this kind.