Bodycorp Repairers v Holding Redlich - [2017] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S CI 2016 02853

Bodycorp Repairers Pty Ltd (ACN 068 589 408)	Plaintiff
v
Holding Redlich	Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2017
DATE OF JUDGMENT:	27 April 2017
CASE MAY BE CITED AS:	Bodycorp Repairers v Holding Redlich
MEDIUM NEUTRAL CITATION:	[2017] VSC 215

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PRACTICE AND PROCEDURE — Summary judgment application — s 63 Civil Procedure Act 2010 — No real prospect of success — Defendant’s summary judgment application successful on the basis that the proceeding is statute barred under s 5 of the Limitation of Actions Act 1958 — Plaintiff’s application to restrain the defendant’s solicitors from acting refused — Whether affidavits made on information and belief should be admitted — Whether the court should order a party to attend for cross examination — Supreme Court (General Civil Procedure) Rules 2015, rr 22.18, 22.21.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Levine	Templeton Fox Rothschild
For the Defendant	Mr E Batrouney	Obst Legal

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Preliminary applications................................................................................................................... 4

Should Holding Redlich’s lawyers be restrained from acting?............................................. 4
Should the affidavits of Mr Obst be admitted into evidence?............................................... 7
Should the court order Mr Rapke to attend for cross examination?..................................... 9

Application for summary judgment............................................................................................. 10

Limitation of action..................................................................................................................... 11
Factual context................................................................................................................... 13
Analysis............................................................................................................................... 19
Conclusion.......................................................................................................................... 24

Other grounds............................................................................................................................. 25

Conclusion......................................................................................................................................... 25

HIS HONOUR:

Introduction

By summons filed 5 December 2016 the defendant, Holding Redlich, applied for summary judgment in its favour, alternatively an order that the statement of claim filed by the plaintiff, Bodycorp Repairers Pty Ltd (‘Bodycorp’), be summarily dismissed.

Bodycorp ran a business franchising motorcar smash-repair shops. In this proceeding it alleges that Holding Redlich, its former solicitors, negligently or in breach of retainer failed to draft and include legally enforceable restraint of trade clauses in franchise agreements made with its franchisees in 1996/1997 (‘franchise agreements’) and a further agreement with Australian Associated Motor Insurers (‘AAMI’) made on 29 June 1998 (‘AAMI Agreement’). Between 1998 and 2000, Bodycorp’s franchisees terminated their franchise agreements yet continued to enjoy ‘recommended repairer’ status with AAMI in the territories in which the franchises had previously operated. Bodycorp claims that had legally enforceable restraint of trade clauses been incorporated in either or both the franchise agreements and the AAMI agreement it would not have suffered the loss it sustained when, in practical terms, it was unable to engage replacement franchisees to compete with its former franchisees in the relevant territories.

In 2002, Bodycorp commenced a proceeding against AAMI and one of its franchisees for breach of their respective contracts (‘AAMI proceeding’). By a judgment given by Elliott J on 4 September 2013 his Honour dismissed Bodycorp’s claims.[1] Among other things, his Honour concluded that the restraint of trade clause that was incorporated in the AAMI agreement was unreasonable and therefore unenforceable[2].
[1]Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013]…

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.

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Details

Case: [2017] VSC 215
Decision Date: 27 April 2017

CaseChat Overview and Summary

Bodycorp Repairers brought an action against Holding Redlich, its solicitors, for alleged professional negligence. The dispute centred on the timing of the claim and whether it was statute-barred. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the defendant's application for summary judgment should be granted. The court needed to determine whether the plaintiff's proceeding had no real prospect of success, specifically whether it was barred by limitations under section 5 of the Limitation of Actions Act 1958. Additionally, the court considered whether affidavits made on information and belief should be admitted and if it should order a party to attend for cross-examination.

The court found that the plaintiff's proceeding was statute-barred as it was filed beyond the three-year limitation period stipulated by the Limitation of Actions Act 1958. The court also held that the affidavits made on information and belief were admissible as they provided sufficient detail to form a basis for the summary judgment application. Furthermore, the court determined that there was no need to order a party to attend for cross-examination as the facts presented were sufficient to make the decision on summary judgment. Consequently, the defendant's application for summary judgment was successful, and the plaintiff's application to restrain the defendant's solicitors from acting was dismissed.

The court ordered that the defendant's application for summary judgment was granted, and the plaintiff's proceeding was dismissed as statute-barred. The plaintiff's application to restrain the defendant's solicitors from acting was refused. The plaintiff was ordered to pay the defendant's costs of the summary judgment application.

Orders