Brazier v Pohlmann - [2005] QSC 10

SUPREME COURT OF QUEENSLAND

CITATION:

Brazier & Ors v Pohlmann & Ors [2005] QSC 010

PARTIES:

RONALD ERNEST BRAZIER
(first plaintiff)
RONALD GEORGE BRAZIER
(second plaintiff)
ANGELINA BRAZIER
(third plaintiff)
v
GREGORY KENNETH POHLMANN
(first defendant)
MARK DUNCAN HENRY PETERS, MICHAEL ANDREW JOHNSON, RUSSELL JOHN BEER, MICHAEL STEPHEN TAIFALOS, ANTHONY ROY HOGARTH, ELEFTERIOS KARYDAS, DAVID GEORGE HANNAY, MALCOLM ROSS SIPWORTH, REGINOLD JOHN LILLYWHITE AND JOHN MARCUS COVACEVICH TRADING AS MACDONNELLS
(second defendants)

FILE NO:

2447/02

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

24 January 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2004

JUDGE:

Douglas J

ORDER:

DISMISS THE FIRST DEFENDANT’S APPLICATION FOR SUMMARY JUDGMENT.

STRIKE OUT THE PARTICULARS OF THE DAMAGE SUFFERED BY EACH PLAINTIFF CONTAINED IN PARAGRAPH 5 OF THE FURTHER AND BETTER PARTICULARS PROVIDED BY THE PLAINTIFF DATED 12 NOVEMBER 2004.

GIVE LEAVE TO THE PLAINTIFFS TO AMEND THEIR CLAIM AND STATEMENT OF CLAIM SUBSTANTIALLY IN ACCORDANCE WITH THE DRAFT AMENDED CLAIM AND STATEMENT OF CLAIM ANNEXED TO THE AFFIDAVIT OF KATE ELIZABETH AVERY FILED 3 DECEMBER 2004 AS EXHIBIT KEA01 WITH THE EXCEPTION OF THE FIRST PARAGRAPH OF THE PARTICULARS PROVIDED TO PARAGRAPH 36 OF THAT DOCUMENT.

FURTHER ORDER THAT THE PLAINTIFFS MAY DELIVER THEIR PROPOSED FURTHER AMENDED CLAIM AND STATEMENT OF CLAIM WITHIN 14 DAYS OF THE DETERMINATION OF THEIR APPLICATION TO JOIN A THIRD DEFENDANT TO THE PROCEEDING.

FURTHER SUBMISSIONS SOUGHT AS TO COSTS.

CATCHWORDS:

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - WHEN TIME BEGINS TO RUN - IN GENERAL – Negligence claim against former solicitors where it was alleged that personal injuries claims could have been resolved sooner – Claim for loss of interest paid on borrowings or loss of statutory interest because of the delay – Whether the time began to run from the date the matter should have settled or from the date it actually settled – Distinction between loss of a chance or chance of a loss.

PROCEDURE – QUEENSLAND - PRACTICE UNDER RULES OF COURT - SUMMARY JUDGMENT – Application for summary judgment on the basis of the expiry of a limitation period – Application to strike out pleadings – Claim for damages based on interest paid on borrowings.

Uniform Civil Procedure Rules 1999, r. 293
Limitations of Actions Act 1974, s. 10
Supreme Court Act 1995, s. 47

Argyropolous v Layton (2002) 36 MVR 432, referred to
Hawkins v Clayton (1988) 164 CLR 539, referred to
Interchase Corporation Ltd (in liq.) v Grosvenor Hill (Qld) Pty Ltd (No. 3) [2003] 1 Qd R 26, referred to
Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285, referred to
Scarcella v Lettice (2000) 51 NSWLR 302, referred to
Sugal v Fleming [2002] NSWCA 262, applied
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, cited
Westpac Banking Corporation v Commissioner of State Revenue [2004] QSC 19, referred to
Wilson v Rigg (2002) 36 MVR 451, referred to

COUNSEL:

Mr R I Lilley for the…

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 Brazier v Pohlmann

Details

AGLC: Brazier v Pohlmann [2005] QSC 10
Case: [2005] QSC 10
Decision Date: 24 January 2005

CaseChat Overview and Summary

In the case of Brazier v Pohlmann, the plaintiffs sought to hold the defendants, who were their former solicitors, liable for negligence in handling their personal injury claims. The dispute centred around whether the plaintiffs' claims for damages, including lost interest on borrowings, were time-barred under the Limitation of Actions Act. The court was required to determine when the limitation period began to run in relation to these claims, specifically whether it was from the date the matter should have settled or from the actual settlement date. Additionally, the court had to discern between a loss of a chance and a chance of loss in the context of the claims.

The legal issues at hand were primarily concerned with the interpretation of the limitation period in the context of negligence claims against solicitors and the specific point at which the limitation period commences. The plaintiffs argued that the limitation period began to run from the date the matter should have settled, while the defendants contended that it should be from the date it actually settled. The court had to consider whether the plaintiffs' claims for lost interest and damages constituted a loss of a chance or a chance of a loss, which would affect the application of the limitation period.

The court found that the limitation period began to run from the date the matter should have settled, not from the actual settlement date. This decision hinged on the interpretation of the Limitation of Actions Act and the principles governing the commencement of limitation periods in negligence claims. The court determined that the plaintiffs' claims for damages based on lost interest and other financial losses were not barred by limitation, as the limitation period commenced earlier than the defendants argued. The court also struck out certain particulars of damage as they were not adequately supported by evidence.

The orders of the court dismissed the defendants' application for summary judgment, struck out specific parts of the plaintiffs' claims, and allowed the plaintiffs to amend their claims and statement of claim. The court gave leave to the plaintiffs to amend their pleadings substantially in accordance with a draft provided, with some exceptions. The court also sought further submissions on costs, indicating that the matter would continue to be litigated on that aspect.

Orders

Orders of the court

DISMISS THE FIRST DEFENDANT’S APPLICATION FOR SUMMARY JUDGMENT.

STRIKE OUT THE PARTICULARS OF THE DAMAGE SUFFERED BY EACH PLAINTIFF CONTAINED IN PARAGRAPH 5 OF THE FURTHER AND BETTER PARTICULARS PROVIDED BY THE PLAINTIFF DATED 12 NOVEMBER 2004.

GIVE LEAVE TO THE PLAINTIFFS TO AMEND THEIR CLAIM AND STATEMENT OF CLAIM SUBSTANTIALLY IN ACCORDANCE WITH THE DRAFT AMENDED CLAIM AND STATEMENT OF CLAIM ANNEXED TO THE AFFIDAVIT OF KATE ELIZABETH AVERY FILED 3 DECEMBER 2004 AS EXHIBIT KEA01 WITH THE EXCEPTION OF THE FIRST PARAGRAPH OF THE PARTICULARS PROVIDED TO PARAGRAPH 36 OF THAT DOCUMENT.

FURTHER ORDER THAT THE PLAINTIFFS MAY DELIVER THEIR PROPOSED FURTHER AMENDED CLAIM AND STATEMENT OF CLAIM WITHIN 14 DAYS OF THE DETERMINATION OF THEIR APPLICATION TO JOIN A THIRD DEFENDANT TO THE PROCEEDING.

FURTHER SUBMISSIONS SOUGHT AS TO COSTS.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brazier & Ors v Pohlmann & Ors [2005] QSC 010
PARTIES:	RONALD ERNEST BRAZIER (first plaintiff) RONALD GEORGE BRAZIER (second plaintiff) ANGELINA BRAZIER (third plaintiff) v GREGORY KENNETH POHLMANN (first defendant) MARK DUNCAN HENRY PETERS, MICHAEL ANDREW JOHNSON, RUSSELL JOHN BEER, MICHAEL STEPHEN TAIFALOS, ANTHONY ROY HOGARTH, ELEFTERIOS KARYDAS, DAVID GEORGE HANNAY, MALCOLM ROSS SIPWORTH, REGINOLD JOHN LILLYWHITE AND JOHN MARCUS COVACEVICH TRADING AS MACDONNELLS (second defendants)
FILE NO:	2447/02
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	24 January 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2004
JUDGE:	Douglas J
ORDER:	DISMISS THE FIRST DEFENDANT’S APPLICATION FOR SUMMARY JUDGMENT. STRIKE OUT THE PARTICULARS OF THE DAMAGE SUFFERED BY EACH PLAINTIFF CONTAINED IN PARAGRAPH 5 OF THE FURTHER AND BETTER PARTICULARS PROVIDED BY THE PLAINTIFF DATED 12 NOVEMBER 2004. GIVE LEAVE TO THE PLAINTIFFS TO AMEND THEIR CLAIM AND STATEMENT OF CLAIM SUBSTANTIALLY IN ACCORDANCE WITH THE DRAFT AMENDED CLAIM AND STATEMENT OF CLAIM ANNEXED TO THE AFFIDAVIT OF KATE ELIZABETH AVERY FILED 3 DECEMBER 2004 AS EXHIBIT KEA01 WITH THE EXCEPTION OF THE FIRST PARAGRAPH OF THE PARTICULARS PROVIDED TO PARAGRAPH 36 OF THAT DOCUMENT. FURTHER ORDER THAT THE PLAINTIFFS MAY DELIVER THEIR PROPOSED FURTHER AMENDED CLAIM AND STATEMENT OF CLAIM WITHIN 14 DAYS OF THE DETERMINATION OF THEIR APPLICATION TO JOIN A THIRD DEFENDANT TO THE PROCEEDING. FURTHER SUBMISSIONS SOUGHT AS TO COSTS.
CATCHWORDS:	LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - WHEN TIME BEGINS TO RUN - IN GENERAL – Negligence claim against former solicitors where it was alleged that personal injuries claims could have been resolved sooner – Claim for loss of interest paid on borrowings or loss of statutory interest because of the delay – Whether the time began to run from the date the matter should have settled or from the date it actually settled – Distinction between loss of a chance or chance of a loss. PROCEDURE – QUEENSLAND - PRACTICE UNDER RULES OF COURT - SUMMARY JUDGMENT – Application for summary judgment on the basis of the expiry of a limitation period – Application to strike out pleadings – Claim for damages based on interest paid on borrowings. Uniform Civil Procedure Rules 1999, r. 293 Limitations of Actions Act 1974, s. 10 Supreme Court Act 1995, s. 47 Argyropolous v Layton (2002) 36 MVR 432, referred to Hawkins v Clayton (1988) 164 CLR 539, referred to Interchase Corporation Ltd (in liq.) v Grosvenor Hill (Qld) Pty Ltd (No. 3) [2003] 1 Qd R 26, referred to Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285, referred to Scarcella v Lettice (2000) 51 NSWLR 302, referred to Sugal v Fleming [2002] NSWCA 262, applied Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, cited Westpac Banking Corporation v Commissioner of State Revenue [2004] QSC 19, referred to Wilson v Rigg (2002) 36 MVR 451, referred to
COUNSEL:	Mr R I Lilley for the…