Braham v ACN 101 482 580 Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI  2012 3622

SIMON BRAHAM	Plaintiff
v
ACN 101 482 580 PTY LTD (ACN 101 482 580)	Defendant

AND BETWEEN:

S CI 2012 3662

ERIC POON	Plaintiff
v
ACN 101 482 580 PTY LTD (ACN 101 482 580)	Defendant

---

JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2014
DATE OF JUDGMENT:	16 April 2014
CASE MAY BE CITED AS:	Braham and Anor v ACN 101 482 580 Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 171

---

PRACTICE AND PROCEDURE – proportionate liability – plaintiffs commenced separate proceedings against their financial advisors and their lawyers in respect of the one transaction – lawyer defendant seeks to consolidate the proceedings or join the financial advisors as additional defendants – interlocutory judgment for damages to be assessed already obtained against some of the financial advisors – whether the proceedings against those defendants are still “pending” – whether consolidation otherwise appropriate – whether the proceeding in which interlocutory judgment has been obtained is a “previously concluded proceeding in relation to the apportionable claim” – whether the facts supporting joinder are sufficiently pleaded – Wrongs Act 1958 ss 24AH, 24AI, 24 AL -Supreme Court (General Civil Procedure) Rules 2005 r 9.12

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. G. Cawthorn SC	B2B Lawyers
For the Defendants	Ms S. Josephs, solicitor	Minter Ellison

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

History of the proceeding and relevant facts................................................................................ 3

Consolidation...................................................................................................................................... 4

Joinder................................................................................................................................................ 12

Orders................................................................................................................................................. 21

HER HONOUR:

Introduction

1. These applications relate to four proceedings, being two proceedings commenced by a surgeon Mr Braham and two by a doctor, Dr Poon.  Each proceeding relates to an investment the relevant plaintiff made in a managed investment scheme, known as the “Great Southern 2006 Project” (“the Project”), which was a managed investment scheme for plantation wood lots operated by Great Southern Limited in respect of the 2006 tax year. 

1. Each plaintiff has brought a proceeding against the firm of solicitors on whose advice the plaintiff alleges he relied in making the investment, and a separate proceeding against the financial advisors, one of whom at least worked in conjunction with those solicitors and on whose advice the plaintiff says he also relied.  The plaintiffs allege in each of the four proceedings that the advice given by the solicitors and financial advisors was incorrect and negligently given and that, as a consequence of the plaintiff’s reliance on that advice and the investment they made on the basis of it, they have suffered loss.

1. The defendant (“Ambry Legal”) to the two proceedings against the solicitors (‘the “Ambry Legal proceedings”) is a company which formerly operated a law practice known as Ambry Legal.  Mr Keith Harvey, a legal practitioner, was a director of the defendant.  The plaintiff in each case has indicated an intention to discontinue against Mr Harvey personally, and each has filed an amended statement of claim that reflects that intention.  Neither plaintiff…