ASIC v Atlantic 3 Financial (Aust) Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540

PARTIES:

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
(applicant/not a party to the appeal)
GREGORY MICHAEL MOLONEY and PETER IVAN FELIX GEROFF
(applicants/respondents)
v
ATLANTIC 3-FINANCIAL (AUST) PTY LTD
(ACN 056 262 723)
(first respondent/not a party to the appeal)
FREDRIC MICHAEL ACKER
(second respondent/first appellant)
GERILYN MARIE POLANSKI
(third respondent/second appellant)

FILE NO/S:

Appeal No 5732 of 2006
SC No 4426 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2006

JUDGES:

Williams and Jerrard JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, Williams JA and McMurdo J concurring as to the orders made, Jerrard JA dissenting

ORDER:

1. Appeal dismissed

2. Appellants to pay the costs of the appeal to be assessed on a standard basis

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – IN GENERAL – appellants were ordered to pay respondents’ costs – costs to be assessed on the standard basis up until specified date and thereafter on an indemnity basis – respondents applied for assessment of costs statement – appellants objected to validity of agreement between respondents and their solicitors – Senior Deputy Registrar held agreement was “void” under s 48F Queensland Law Society Act 1952 (Qld) (“the Act”) – on appeal a Supreme Court Trial Division judge declared client agreement complied with s 48 – whether client agreement between respondents and their solicitors complied with s 48 of the Act

Acts Interpretation Act 1954 (Qld), s 14B
Parliament of Queensland Act 2001 (Qld), s 8
Queensland Law Society Act 1952 (Qld), 6ZA, s 6ZB, s 48,    s 48F
Uniform Civil Procedure Rules 1999 (Qld), r 704(3)

ASIC v Atlantic 3 - Financial (Aust) Pty Ltd & Ors [2006] QSC 152; BS 4426 of 2003, 23 June 2006, considered

Casey v Quabba& Anor [2007] 1 Qd. R. 297, considered

Herald & Ors v Worker Bee (Brisbane) Pty Ltd [2004] 2 Qd. R. 263, considered

In Re WP Morgan (1881) 1 QLJ 49, considered

In Re Herbert (1887) 34 Ch D 504, considered

Struber v McNamara & Associates [2003] QSC 372; S 8979 of 2003, 3 November 2003, considered

COUNSEL:

P J Davis SC for the appellants
P H Morrison QC, with S J Lee, for the respondents

SOLICITORS:

Lynch & Co for the appellants
Gadens Lawyers for the respondents

1.  WILLIAMS JA:  The relevant facts and legislative provisions are fully set out in the reasons for judgment of McMurdo J and Jerrard JA and I will not repeat them.

1. In dealing with the appellant's contention that the client agreement did not comply with clause 11 of the prescribed notice, McMurdo J and Jerrard JA reasoned differently in concluding that non-compliance had not been established.  In my view there is validity in each approach,…