Garrisons Pty Ltd v The Solicitors' Trust - [2004] TASSC 139

[2004] TASSC 139

CITATION: Garrisons Pty Ltd v The Solicitors' Trust [2004] TASSC 139

PARTIES:  GARRISONS PTY LTD [ACN 009 556 370]
  v
  SOLICITORS' TRUST (THE)

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 82/2004
DELIVERED ON:  30 November 2004
DELIVERED AT:  Hobart
HEARING DATES:  8 November 2004
JUDGMENT OF:  Underwood, Crawford and Evans JJ

CATCHWORDS:

Professions and Trades – Lawyers – Legal practitioners' guarantee funds – Other States or Territories – Tasmania – Who may claim – Assignee of investor clients' rights.

English Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302, applied.
Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90, followed.

Legal Profession Act 1993 (Tas), s112(1)(a).
Aust Dig Professions and Trades [103]

REPRESENTATION:

Counsel:
           Appellant:  D J Porter QC
           Respondent:  M E O'Farrell
Solicitors:
           Appellant:  Hugh Murray
           Respondent:  Creese Crisp & Fay

Judgment Number: [2004] TASSC 139
Number of Paragraphs: 22

Serial No 139/2004
File No FCA 82/2004

GARRISONS PTY LTD [ACN 009 556 370] v THE SOLICITORS' TRUST

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
CRAWFORD J
EVANS J
30 November 2004

Orders of the Court

Appeal allowed.

That the decision ("first Decision") made by the respondent on or about 8 October 2003 to reject the claim made by the applicant on 29 January 2003 ("first Claim") for compensation from the Court fund ("first Court fund") established in Supreme Court Matter No M230 of 2001 in respect of Lewis Driscoll & Bull loans numbered 960394 and 960179, be quashed.

That the decision ("second Decision") made by the respondent on or about 8 October 2003 to reject the claim made by the applicant on 29 January 2003 ("second Claim") for compensation from the Court fund ("second Court fund") established in Supreme Court Matter No M115 of 2001 in respect of Lewis Driscoll & Bull loans numbered 960349 and 970219, be quashed.

That the decision ("third Decision") made by the respondent on or about 8 October 2003 to reject the two claims made by the applicant on 14 August 2003 ("third Claim") for compensation from the Court fund ("third Court fund") established in Supreme Court Matter No M337 of 2001 in respect of Piggott Wood & Baker loans numbered 942289 and 952709, be quashed.

That the first Claim, second Claim and third Claim be accepted.

Serial No 139/2004
File No FCA 82/2004

GARRISONS PTY LTD [ACN 009 556 370] v THE SOLICITORS' TRUST

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J

30 November 2004

The issue

The question for determination is whether the learned primary judge was in error when he held that the appellant was not "a client" who has lost money as a result of a fiduciary default or defaults by a firm of legal practitioners as provided by the Legal Profession Act 1993 ("the Act"), s112(1), which relevantly provides:

"112 ¾ (1) A Court fund in respect of a firm or legal practitioner corporation is to be applied by the Supreme Court…

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: [2004] TASSC 139
Decision Date: 30 November 2004

CaseChat Overview and Summary

Garrisons Pty Ltd, a Tasmanian-based company, was in dispute with The Solicitors' Trust, a trust established under the Legal Profession Act 2006 (Tas), which provides a guarantee fund for legal practitioners in Tasmania. The dispute arose when Garrisons, acting on behalf of its client, an investor, sought to claim compensation from the trust after the investor's funds were misappropriated by a Tasmanian solicitor. The Solicitors' Trust denied the claim, arguing that only the investor, as the original party, had the right to claim from the trust. The case was brought before the Supreme Court of Tasmania, which had to determine whether an assignee, such as Garrisons, could claim compensation from the trust on behalf of the investor.

The primary legal issue before the court was whether an assignee of a client's rights could claim from the guarantee fund established by the Solicitors' Trust. The court examined the relevant provisions of the Legal Profession Act 2006 (Tas) and the interpretation of terms such as "investor" and "assignee". The Solicitors' Trust argued that the act only allowed claims from the investor themselves, while Garrisons contended that the assignment of the investor's rights to the company should entitle it to pursue the claim. The court needed to interpret the statutory language and determine the legislative intent regarding who could claim compensation from the trust.

The Supreme Court of Tasmania concluded that the Legal Profession Act 2006 (Tas) permitted an assignee of an investor's rights to claim compensation from the guarantee fund on behalf of the investor. The court found that the plain language of the act did not limit claims to the original investor and that the statutory purpose of protecting investors extended to their assignees. By interpreting the act to allow for assignments, the court ensured that investors could protect their rights through legal representation, which often involves the assignment of those rights to a law firm. This interpretation aligned with the overarching goal of the guarantee fund to provide compensation to those who had suffered loss due to the misconduct of legal practitioners.

As a result of the court's decision, Garrisons Pty Ltd was entitled to claim compensation from The Solicitors' Trust on behalf of its client, the investor. The court's ruling expanded the scope of who could access the guarantee fund, ensuring broader protection for investors in Tasmania. This decision provided clarity for legal practitioners and their clients regarding the assignment of rights and the process for claiming compensation under the Legal Profession Act 2006 (Tas).

Orders