JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4, 5, 6 and 11 October 2016
DATE OF JUDGMENT:	17 November 2016
CASE MAY BE CITED AS:	Equal 54 Pty Ltd v Dennis Galimberti & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 588

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Negligence – Solicitor – Scope of solicitor’s duty of care in relation to purchase of interest in hotel business, including shares, and signing of guarantee – whether solicitor breached duty of care - whether failure to advise of defects in the structure of the partnership deed executed in relation to purchase - whether failure to advise of defects in company search in alleged conversations immediately prior to the signing of the guarantee – Whether breaches caused losses – Part X of the Wrongs Act 1958 (Vic) - whether alleged losses suffered, in particular, whether alleged loss suffered by reason of finding of Emmett J in Frauenstein v Farinha [2007] FCA 1953 that the shares obtained were liable to be set aside - whether the causes of action are statute barred pursuant to s 5(1)(a) of the Limitation of Actions Act1958 (Vic) - whether any liability should be reduced by reason of the provisions of Part IVAA of the Wrongs Act1958 (Vic) - Contributory negligence

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Harvey with Mr S Dyrenfurth	Taylor Stratmann Lawyers
For the First Defendant	Ms A Ryan QC with Mr D Klempfner	Colin Biggers & Paisley Lawyers

HER HONOUR:

The plaintiff, Equal 54 Pty Ltd (Equal 54), is a company associated with Mr James Panagopoulos. The first defendant, Mr Dennis Galimberti, is a legal practitioner who conducted Maurice Blackburn Cashman Pty Ltd’s (Maurice Blackburn Cashman) liquor licencing and conveyancing department under the name of “Hall & Thompson”.

In or about March 2005, Mr Panagopoulos entered into negotiations to purchase an interest in a pub known as the Equilibrium Hotel, located in the World Square shopping centre in Sydney. In September 2005, Mr Panagopoulos retained Mr Galimberti to act for him in respect to this purchase.

Subsequently, Equal 54 entered into a Partnership Deed with San Marco World Square Pty Ltd (San Marco World Square) and Cine San Marco Pty Ltd (Cine San Marco) in December 2005, and also later executed a Deed of Guarantee and Indemnity in favour of Industry Funds Management (Nominees 2) Pty Ltd (IFM) (the Relevant Guarantee).

Equal 54 now sues Mr Galimberti in negligence for damages alleged to have been suffered as a result of Equal 54’s entry into the Partnership Deed and the Relevant Guarantee.

In particular, it is alleged that Mr Galimberti breached his duties, first, in failing to advise of defects 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.

Continue reading Equal 54 Pty Ltd v Dennis Galimberti

Details

AGLC: Equal 54 Pty Ltd v Dennis Galimberti [2016] VSC 588
Case: [2016] VSC 588
Decision Date: 17 November 2016

CaseChat Overview and Summary

Equal 54 Pty Ltd sought damages from Dennis Galimberti, a solicitor, for alleged breaches of duty in relation to the purchase of shares in a hotel business and the signing of a guarantee. The claim was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant failed to advise of defects in the structure of the partnership deed and the company search, which resulted in losses. The defendant argued that the claims were statute barred and that any liability should be reduced under the provisions of Part IVAA of the Wrongs Act 1958 (Vic). Additionally, the defendant raised the defence of contributory negligence.

The court was required to determine whether the defendant breached his duty of care by failing to advise of defects in the structure of the partnership deed and the company search. It was also necessary to establish whether the alleged breaches caused the losses claimed by the plaintiff. Furthermore, the court needed to decide whether the plaintiff's causes of action were statute barred and whether any liability should be reduced under the provisions of Part IVAA of the Wrongs Act 1958 (Vic). Finally, the court had to consider the defence of contributory negligence raised by the defendant.

The court found that the defendant did not breach his duty of care by failing to advise of defects in the structure of the partnership deed and the company search. The court held that the alleged breaches did not cause the losses claimed by the plaintiff. The court also found that the plaintiff's causes of action were statute barred and that any liability should be reduced under the provisions of Part IVAA of the Wrongs Act 1958 (Vic). Finally, the court found that the plaintiff was contributorily negligent.

The court dismissed the claim with costs.

Orders