CRAIG MOSTYN & CO PTY LTD -v- ATHERTON & ORS [2007] WADC 184

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 184
Case No:	CIV:181/2005	Heard:	24 SEPTEMBER 2007
Coram:	STAVRIANOU DCJ	Delivered:	25/10/07
Location:	PERTH
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed
PDF Version

Parties:	CRAIG MOSTYN & CO PTY LTD FRANCIS JOHN ATHERTON JOSEPH ANTHONY MARTELLA TERRY MICHAEL FOGLIANI ALAN ROY HANCOCK PETER NORMAN WOOD JOHN ALAN MORRIS DEACONS
Catchwords:	Practice Practice under the Rules of the Supreme Court of Western Australia Application by third party for summary judgment under O 16 Rules of the Supreme Court or to set aside third party notice under O19 r 6 Claims by defendant against solicitors under retainer, duty of care and Fair Trading Act 1987, s 10 Turns on own facts
Legislation:	Fair Trading Act 1987 Trade Practices Act 1974 Rules of the Supreme Court 1971
Case References:	Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Graham Barclay Oysters Ltd v Ryan (2002) 211 CLR 540 Groom v Crocker [1939] 1 KB 194 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Minproc Ltd v Killinger [2001] WASC 347 Pegrum v Fatharly (1996) 14 WAR 92 Townsend & Anor v Roussety & Co (WA) Pty Ltd & Anor (2007) 33 WAR 321 Wickstead & Ors v Browne (1992) 30 NSWLR 1; (1993) 10 Leg Rep SL 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : CRAIG MOSTYN & CO PTY LTD -v- ATHERTON & ORS [2007] WADC 184 CORAM : STAVRIANOU DCJ HEARD : 24 SEPTEMBER 2007 DELIVERED : 25 OCTOBER 2007 FILE NO/S : CIV 181 of 2005 BETWEEN : CRAIG MOSTYN & CO PTY LTD

Plaintiff

AND

FRANCIS JOHN ATHERTON

JOSEPH ANTHONY MARTELLA

TERRY MICHAEL FOGLIANI

ALAN ROY HANCOCK

PETER NORMAN WOOD

JOHN ALAN MORRIS

Defendants

DEACONS

Third Party

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DEPUTY REGISTRAR HARMAN

Citation : [2007] WADC 133

(Page 2)

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Application by third party for summary judgment under O 16 Rules of the Supreme Court or to set aside third party notice under O19 r 6 - Claims by defendant against solicitors under retainer, duty of care and Fair Trading Act 1987, s 10 - Turns on own facts

Legislation:

Fair Trading Act 1987

Trade Practices Act 1974
Rules of the Supreme Court 1971

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff : No appearance

Defendants : Mr M F Rynne

Third Party : Mr S F Popperwell

Solicitors:

Plaintiff : Not applicable

Defendants : Tottle Partners

Third Party : Pynt & Partners

Case(s) referred to in judgment(s):

Demagogue Pty Ltd v Ramensky (1992) 39…

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.

Keep reading for free

Create a free CaseChat account to read Craig Mostyn and Co Pty Ltd v Atherton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] WADC 184
Decision Date: 25 OCTOBER 2007

CaseChat Overview and Summary

Craig Mostyn and Co Pty Ltd was sued by Atherton in the Supreme Court of Western Australia. Atherton sued for professional negligence, alleging that Craig Mostyn and Co Pty Ltd breached a duty of care in their role as solicitors, and also sought relief under the Fair Trading Act 1987. Craig Mostyn and Co Pty Ltd responded by filing a third-party claim against their own solicitors, asserting that their professional negligence led to the errors that caused Atherton's damages. The primary legal issues were whether Craig Mostyn and Co Pty Ltd could be granted summary judgment in the third-party action, and if the third-party notice was validly served.

The court examined whether Craig Mostyn and Co Pty Ltd's claim against their own solicitors could proceed under the summary judgment rules or if the third-party notice was improperly served. The court determined that Craig Mostyn and Co Pty Ltd's claim was based on its own facts and could not be resolved by summary judgment. Furthermore, the court concluded that the third-party notice was validly served and that Craig Mostyn and Co Pty Ltd's claim against their own solicitors should proceed. The court allowed the appeal, finding that the third-party notice was appropriately served and that the claim against their own solicitors should be heard.

Orders

Orders of the court

Appeal allowed

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.