Derry Dew Pty Ltd v Mackinlay [No 2] - [2013] WADC 9

DERRY DEW PTY LTD -v- MACKINLAY [No 2] [2013] WADC 9

Last Update: 24/01/2013

DERRY DEW PTY LTD -v- MACKINLAY [No 2] [2013] WADC 9
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 9
Case No:	CIV:2968/2008	Heard:	30-31 OCTOBER & 1 NOVEMBER 2012
Coram:	EATON DCJ	Delivered:	18/01/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	38	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff in the sum of $264,347.20
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DERRY DEW PTY LTD ALISTAIR ROBERT MACKINLAY
Catchwords:	Landlord and tenant Deed of assignment and variation of a lease Whether illegal and void Severance Professional obligations of a solicitor Failure to advise Assessment of damages
Legislation:	Town Planning and Development Act 1928
Case References:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 164 CLR 64 Farleigh Investments Pty Ltd v Reefking Pty Ltd [2002] WASC 115 Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33 Livingston v Rawyards Coal Company (1880) 5 App Cas 25 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 Permanent Building Society (in liq) v Wheeler (1992) 10 WAR 109 SST Consulting Pty Ltd v Rieson (2006) 225 CLR 516 Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363 Wilson International Pty Ltd v International House Pty Ltd [1983] WAR 243

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : DERRY DEW PTY LTD -v- MACKINLAY [No 2] [2013] WADC 9 CORAM : EATON DCJ HEARD : 30-31 OCTOBER & 1 NOVEMBER 2012 DELIVERED : 18 JANUARY 2013 FILE NO/S : CIV 2968 of 2008 BETWEEN : DERRY DEW PTY LTD

Plaintiff

AND

ALISTAIR ROBERT MACKINLAY

Defendant

Catchwords:

Landlord and tenant - Deed of assignment and variation of a lease - Whether illegal and void - Severance - Professional obligations of a solicitor - Failure to advise - Assessment of damages

Legislation:

Town Planning and Development Act 1928

Result:

Judgment for the plaintiff in the sum of $264,347.20

(Page 2)

Representation:

Counsel:

Plaintiff : Mr G D Cobby

Defendant : Mr J A Thomson

Solicitors:

Plaintiff : Arns & Associates

Defendant : King and Wood Mallesons

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

Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 164 CLR 64
Farleigh Investments Pty Ltd v Reefking Pty Ltd [2002] WASC 115
Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33
Livingston v Rawyards Coal Company (1880) 5 App Cas 25
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Permanent Building Society (in liq) v…

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: [2013] WADC 9
Decision Date

CaseChat Overview and Summary

The plaintiff, Derry Dew Pty Ltd, brought an action against the defendant, Alistair Robert Mackinlay, for damages for negligence in the sum of $339,403.00. The plaintiff's claim arose from the defendant's alleged failure to advise the plaintiff that a deed of assignment and variation of a lease of a tavern was illegal, void and of no effect. The plaintiff further pleaded that the defendant failed to advise the plaintiff of the steps required to be taken in order to comply with the provisions of the Town Planning and Development Act 1928 and that the defendant failed to prepare a variation of the assignment of lease that was not illegal or void or of no effect. The defendant denied the allegations and, in the alternative, contended that the plaintiff had failed to mitigate its loss. The court found that the deed of assignment and variation of the lease was illegal, void and of no effect. The court held that the defendant had breached his duty of care owed to the plaintiff and that the breach of duty had caused the plaintiff's loss. The court further held that the plaintiff had mitigated its loss as far as practicable. The court awarded the plaintiff damages in the sum of $264,347.20.

Orders