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Aaronisle Pty Ltd v Thorpe

Aaronisle Pty Ltd v Thorpe

Case [2005] WASC 87 20 May 2005

Civil Litigation & Procedure

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AARONISLE PTY LTD -v- THORPE & ANOR [2005] WASC 87

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 87
Case No:	CIV:1388/2005	Heard:	18 & 22 APRIL 2005
Coram:	COMMISSIONER MCKERRACHER QC	Delivered:	20/05/05
No of pages:	18	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	AARONISLE PTY LTD ANDREW CECIL THORPE REGISTRAR OF TITLES
Catchwords:	Mandatory injunction Removal of caveat Summary accounting Fiduciary duty of legal practitioner in securing past and future fees Undertakings to remove caveats to accommodate settlements
Legislation:	Legal Practice Act 2003, s 225, s 231(3), (4) Legal Practitioners Act 1893, s 62 Rules of the Supreme Court 1971 (WA), O 45 r 2 Transfer of Land Act 1893
Case References:	Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Cayne v Global Natural Resources Plc [1984] 1 All ER 225 Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992; [1973] 1 WLR 349 Holborow v Macdonald Rudder (A Firm) [2001] WASCA 91 Pindan Pty Ltd v Sunny's Redevelopment & Ors [2001] WASC 104 Re Nelson and the Legal Practitioner's Act (1970) 106 ACTR 1; 105 FLR 137 Re Peggoty, unreported; SCt of Qld (Derrington J); Library No 256 of 1981; 5 April 1991 State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 State Transport Authority v Apex Quarries Ltd [1988] VR 187 Westminster Brymbo Coal & Coke Co v Clapton (1867) 36 LJ Ch 476 Woodward v Page, unreported; Eq Div SCt of NSW (McLelland J); Library No 3329 of 1989; 20 July 1989 Kirschbaum v "Our Voices" Publishing Company & Ors [1972] 1 OR 737 Macedonian Society of Western Australia (Inc) (Receiver and Manager appointed) v St George Bank Ltd [2003] WASC 17 Re Gyhon; Allen v Taylor (1885) 29 Ch 834

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : AARONISLE PTY LTD -v- THORPE & ANOR [2005] WASC 87 CORAM : COMMISSIONER MCKERRACHER QC HEARD : 18 & 22 APRIL 2005 DELIVERED : 20 MAY 2005 FILE NO/S : CIV 1388 of 2005 BETWEEN : AARONISLE PTY LTD

Plaintiff

AND

ANDREW CECIL THORPE

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Mandatory injunction - Removal of caveat - Summary accounting - Fiduciary duty of legal practitioner in securing past and future fees - Undertakings to remove caveats to accommodate settlements

Legislation:

Legal Practice Act 2003, s 225, s 231(3), (4)

Legal Practitioners Act 1893, s 62
Rules of the Supreme Court 1971 (WA), O 45 r 2
Transfer of Land Act 1893

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr J R Birman

First Defendant : In person (18 April 2005)

Mr J Gilmour QC (22 April 2005)

Second Defendant : No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aaronisle Pty Ltd v Thorpe

Details

AGLC: Aaronisle Pty Ltd v Thorpe [2005] WASC 87
Case: [2005] WASC 87
Decision Date

CaseChat Overview and Summary

Aaronisle Pty Ltd applied for urgent injunctive relief against Andrew Cecil Thorpe, a solicitor, and the Registrar of Titles. The plaintiff claimed that Thorpe, in breach of his fiduciary duties, had failed to advise the plaintiff about a charge executed to secure payment of professional fees. The plaintiff also sought an order for Thorpe to account for all monies he had received and paid on the plaintiff's behalf, both for professional services and commercial activities. The court was required to decide whether the plaintiff's claim was serious enough to warrant interlocutory injunctive relief and whether damages would be an adequate remedy. The court found that the plaintiff had not demonstrated a high probability of success on the claim that Thorpe had breached his fiduciary duties regarding the charge. Additionally, the court found that there was a real dispute regarding whether Thorpe had already accounted for the Maylands project and legal fees, making a summary accounting inappropriate. The court also concluded that the balance of convenience did not favour granting the injunctive relief sought by the plaintiff. The application for injunctive relief was dismissed.

Orders