CRAIG MOSTYN & CO PTY LTD -v- ATHERTON & ORS [2007] WADC 133

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 133
Case No:	CIV:181/2005	Heard:	24 MAY 2007
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	2/08/07
Location:	PERTH
No of pages:	15	Judgment Part:	1 of 1
Result:	Application successful
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 for summary judgment by third party Claims by defendant against solicitors under retainer , duty of care and Fair Trading Act WA, s 10 Turns on its facts
Legislation:	Fair Trading Act 1987
Case References:	Dey v Victorian Railway Commissioners (1948) 78 CLR 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : CRAIG MOSTYN & CO PTY LTD -v- ATHERTON & ORS [2007] WADC 133 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 24 MAY 2007 DELIVERED : 2 AUGUST 2007 FILE NO/S : CIV 181 of 2005 BETWEEN : CRAIG MOSTYN & CO PTY LTD

Plaintiff

AND

FRANCIS JOHN ATHERTON

First First Defendant

JOSEPH ANTHONY MARTELLA

First Second Defendant

TERRY MICHAEL FOGLIANI

First Third Defendant

ALAN ROY HANCOCK

First Fourth Defendant

PETER NORMAN WOOD

First Fifth Defendant

JOHN ALAN MORRIS

First Sixth Defendant

DEACONS

First Third Party

(Page 2)

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Application for summary judgment by third party - Claims by defendant against solicitors under retainer , duty of care and Fair Trading Act WA, s 10 - Turns on its facts

Legislation:

Fair Trading Act 1987

Result:

Application successful

Representation:

Counsel:

Plaintiff : No appearance

First First Defendant : Mr M F Rynne

First Second Defendant : Mr M F Rynne

First Third Defendant : Mr M F Rynne

First Fourth Defendant : Mr M F Rynne

First Fifth Defendant : Mr M F Rynne

First Sixth Defendant : Mr M F Rynne

First Third Party : Mr G J Pynt

Solicitors:

Plaintiff : Not applicable

First First Defendant : Tottle Partners

First Second Defendant : Tottle Partners

First Third Defendant : Tottle Partners

First Fourth Defendant : Tottle Partners

First Fifth Defendant : Tottle Partners

First Sixth Defendant : Tottle Partners

First Third Party : Pynt & Partners

(Page 3)

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

Dey v Victorian Railway Commissioners (1948) 78 CLR 62

(Page 4)

1 DEPUTY REGISTRAR HARMAN: The plaintiff's claim in the action is pursuant to a guarantee.

2 The defendants' amended statement of claim is expressed as follows:

"5 If the defendants are liable to the plaintiff pursuant to the statement of claim of the plaintiff pleaded in the particulars to paragraph 2 of this statement of claim (which the defendants deny) then the defendants claim that the third party is liable to the defendants as set out in 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.

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Details

Case: [2007] WADC 133
Decision Date: 2 AUGUST 2007

CaseChat Overview and Summary

In the case of Craig Mostyn and Co Pty Ltd v Atherton, the dispute arose from a claim by a defendant against his solicitors, who were acting under a retainer. The defendant sought damages for professional negligence and breaches of the Fair Trading Act, WA. The defendant, Atherton, applied to the Supreme Court of Western Australia for summary judgment against the solicitors, Craig Mostyn and Co Pty Ltd. The primary legal issues the court had to address were whether the solicitors owed a duty of care to Atherton, whether that duty was breached, and if the breach caused Atherton's damages. Additionally, the court needed to determine whether the solicitors were liable under the Fair Trading Act, WA, s 10 for misleading or deceptive conduct.

The court considered the nature of the retainer and the specific duties owed by the solicitors to Atherton. It examined the relevant case law on the duty of care in legal practice and the statutory obligations under the Fair Trading Act, WA. The court found that the solicitors had a duty to act with reasonable care and skill in their representation of Atherton. However, it was determined that the solicitors did not breach this duty as they acted within the scope of their retainer and provided the services as agreed. The court also held that the Fair Trading Act, WA, s 10 did not apply because there was no misleading or deceptive conduct by the solicitors. As a result, the court granted the application for summary judgment in favour of Craig Mostyn and Co Pty Ltd, finding that Atherton's claims were without merit.

Orders

Orders of the court

Application successful

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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