plz help me doing my law essay..
Just give me some important points...
Six months later, the same client comes to see you again. She shows you an advice received recently from the partnership¡¯s investment banker, Selby Bank, which suggests that the partnership should engage in some risky behaviour because it will produce a large profit. The partners acted in reliance upon the advice from Selby Bank, which said ¡®you need not spend money to remove the toxic waste under the new block of flats you are building in Epping because no one will ever know¡±. The partnership now finds its development discussed in a front page article in today¡¯s Sydney Morning Herald in a scandal over the toxic waste. As a consequence, the partnership¡¯s external financier (Blazey Bank) is refusing to provide the rest of the loan funding to complete the development. Each partner will lose $1million as a result.
Under these circumstances, can the partners sue Selby Bank for the losses incurred? In your answer, you are to apply both the common law and statutory law on the relevant area of negligence. For statutory law, you are to refer to the Civil Liability Act 2001 (NSW) only and not any other legislation.
It appears to me that a crime was committed, and the common law applies. The partners go to jail, and have no civil remedy. I don't have a copy of the LV 2001, however, in the 2002 and 2003 copy under obvious risk the partners have no recourse.
To determine whether the partners can sue Selby Bank for the losses incurred, we need to analyze the situation under both common law and statutory law on the relevant area of negligence. Specifically, we should refer to the Civil Liability Act 2001 (NSW) for the statutory law analysis.
1. Common Law Analysis:
Under common law, to establish a claim of negligence, the following elements must be satisfied:
a) Duty of Care: The plaintiff must show that the defendant owed them a duty of care.
In this case, the partners can argue that Selby Bank owed them a duty of care as it provided advice regarding the risky behavior of not removing the toxic waste.
b) Breach of Duty: The plaintiff must prove that the defendant breached the duty of care.
The argument here would be that Selby Bank breached their duty of care by providing negligent advice, which suggested the partners not to remove the toxic waste.
c) Causation: The plaintiff must demonstrate that the defendant's breach of duty caused their loss.
The partners can argue that their reliance on Selby Bank's advice directly caused the loss when the scandal regarding the toxic waste was publicized, leading to the refusal of loan funding from Blazey Bank.
d) Damages: Finally, the plaintiff needs to establish that they suffered actual damages.
The partners' loss of $1 million each can be considered as the actual damages suffered due to Selby Bank's advice.
Therefore, based on the common law analysis, the partners may have a valid claim against Selby Bank for negligence.
2. Statutory Law Analysis (Civil Liability Act 2001, NSW):
Under the Civil Liability Act 2001, negligence is defined as a failure to exercise reasonable care and skill.
To apply the statutory law, we need to consider any applicable provisions in the Act that might affect the outcome of the claim. In this case, the most relevant provision would be Section 5B, which outlines the general principles of duty of care.
According to Section 5B(1), a person who is under a duty of care must take reasonable care to avoid foreseeable harm to others.
The partners can argue that Selby Bank, being an investment banker providing advice, was under a duty of care to take reasonable care in providing accurate and reliable advice.
Section 5B(2) states that in determining whether a reasonable person would have taken precautions to prevent harm, the court must consider the steps that would have been reasonable in the circumstances.
The partners can argue that a reasonable investment banker would have advised the removal of toxic waste to avoid potential harm and scandal.
Considering the partners' argument and the provisions of Section 5B, it is likely that the court would find Selby Bank to be in breach of their duty of care under the statutory law as well.
In conclusion, based on both the common law and statutory law analysis, it appears that the partners may have a valid claim against Selby Bank for negligence, which resulted in their losses. However, it is crucial to consult a legal professional or refer to relevant case law for a more accurate assessment of the situation.