FEDERAL COURT OF AUSTRALIA
Carey v Freehills [2013] FCA 954
Citation: Carey v Freehills [2013] FCA 954 Parties: NORMAN PHILLIP CAREY & ORS (ACCORDING TO ATTACHED SCHEDULE); FREEHILLS and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION File number: VID 485 of 2008 Judge: KENNY J Date of judgment: 20 September 2013 Catchwords: NEGLIGENCE – Solicitor negligence – Duty of Care - Implied retainer alleged between solicitor and sole and effective controller of corporate structure – Status as ‘sole and effective controller’ of corporate structure in establishing duty of care independent of retainer – Novel category of duty – Duty of care to majority and third party shareholders of client company - Multifactorial approach applied – No duty of care found.
NEGLIGENCE – Solicitor negligence – Alleged breach of duty of care – Statements of law made by solicitor - Advice and advocacy on behalf of client– Duty to warn - No breach of duty found.
NEGLIGENCE – Causation – Interaction of s 5C(1)(a) of the Civil Liability Act 2002 (WA) and common law test – ‘but for’ test – Not appropriate case to otherwise attribute causal link - No causal link established.
NEGLIGENCE – Loss and Damage - Claim for damages where damage suffered characterised as lost opportunity to float Company – Capacity of shareholder to claim loss shared by company – Capacity of ‘sole and effective controller’ to claim loss shared by company – Whether loss was loss of company - Rule against shareholder claims for mere reflective loss of Company.
MISLEADING OR DECEPTIVE CONDUCT – Alleged loss suffered by non-client as a result of misrepresenations of law and fact by solicitor – No reliance on alleged misrepresentations – Not applicable case for liability absent reliance – Claim not made out.
CORPORATIONS – Corporate collapse - Shareholder claim for damages where damage suffered characterised as lost opportunity to float Company – Capacity of shareholder to claim loss shared by company – Whether loss was loss of company - Rule against shareholder claims for mere reflective loss of Company.
Legislation: Managed Investments Act 1998 (Cth)
Financial Services Reform Act2001 (Cth)
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (WA)
Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
Consumer and Competition Act 2010 (Cth)
Civil Liability Act 2002 (WA)
Wrongs Act 1958 (Vic)
Civil Liability Act 2002 (NSW)Cases cited:
Emu Brewery Mezzanine Ltd (In Liq) v Australian Securities and Investments Commission [2006] WASCA 105
Jones v Dunkel (1959) 101 CLR 298
Financial Industry Complaints Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229
Australian Securities and Investments Commission v Ann Street Mezzanine Pty Ltd (2005) 56 ACSR 340
PeterBodum A/S & Ors v DKSH Australia Pty Ltd (2011) 280 ALR 639
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Henville v Walker
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- Case
- [2013] FCA 954
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