GMU Australia Pty Limited v Timothy Roger Davidson - [2003] NSWSC 311

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CITATION: GMU Australia Pty Limited v Timothy Roger Davidson & Ors [2003] NSWSC 311

HEARING DATE(S): 10/04/03

JUDGMENT DATE:
16 April 2003

JURISDICTION:
Equity Division
Commercial Division

JUDGMENT OF: Einstein J

DECISION: Motion to be dismissed with costs.

CATCHWORDS: Practice and Procedure - Motion to dismiss proceedings - Statute barring of actions - General rule as to when a cause of action accrues is subject to qualifications when the very act of negligence that inflicts the injury also has the effect of precluding the bringing of an action for damages - Need to establish a coincidence between the negligent conduct and the conduct that conceals from the plaintiff that he or she has a cause of action - relevance of failure to inform which precludes putative plaintiff from taking a relevant action

LEGISLATION CITED: Fair Trading Act (1987) NSW
Limitation Act, 1969 (NSW)
Trade Practices Act 1974 (C'th)

CASES CITED: Argyropoulos v Layton [2002] NSWCA 183; BC 200203324
Cheney and Wilson v Duncan [2001] NSWCA 197
Crisp v Blake (1992) Aust Torts Reports 81-158
Di Sante v Camando Nominees Pty Limited [2000] VSC 211
Doundoulakis v Antony Sdrinis & Co [1989] VR 781
Hawkins v Clayton (1988) 164 CLR 539
Hetherington v Mirvac Pty Limited (1999) Australian Torts Reports 81-514 NSWSC 443
Hillebrand v Council of the City of Penrith (2000) NSWSC 1058 Austin J. (BC200007069).
Johnson v Perez (1988) 166 CLR 351
Nikolaou v Papasavas , Phillips & Company (1989) 166 CLR 394
Pirelli General Cable Works Limited v Oscar Faber & Partners (a firm) [1983] 2 AC 1
Registrar-General v Cleaver (1996) 41 NSWLR 713
Sampson v Zucker [NSWCA, unreported, 11 December 1996]
Scarcella v Lettice (2000) 51 NSWLR 302
Toomey v WALS (1999) NSWSC 560
Vulic v Bilinsky [1983] 2 NSWLR 472
Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514
Wilson v Rigg (2002) 36 MVR 451; [2002] NSWCA 246

PARTIES :
GMU Australia Pty Limited (Plaintiff)
Timothy Roger Davidson (First Defendant)
David Charles Bracey (Second Defendant)
Patrick Gerard O'Donoghue (Third Defendant)

FILE NUMBER(S): SC 50167/02

COUNSEL: M Ashhurst (Plaintiff/Respondent on the motion)
J Buinet (First and Second Defendant)
M McCulloch, Mr Stitt (Third Defendant/Applicant on the notice of motion)

SOLICITORS: Clayton Utz (Plaintiff/Respondent on the motion)
Herbert Geer & Rundle (First and Second Defendant)
Ebsworth & Ebsworth (Third Defendant/Applicant on the notice of motion)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

EINSTEIN J

WEDNESDAY 16 APRIL 2003

50167/2002 GMU AUSTRALIA PTY LTD v TIMOTHY ROGER DAVIDSON & ORS

JUDGMENT

The Notice of Motion

1 There is before the court a notice of motion filed on 21 March 2003 for an order that the Summons, as against the third defendant, be dismissed pursuant to Part 13 Rule 5(1)(a) of the Supreme Court Rules.

The Proceedings

2 The Summons was filed on 30 September 2002. The plaintiff brings the proceedings against the three defendants in connection with auditing contracts entered into by the defendants in different groupings with the plaintiff. The third defendant was a partner of the accounting firm trading as O'Donoghue Bracey Davidson from 30 November 1991 up until September 1992. The plaintiff claims against him in that capacity, also joining the first and second defendants, the claim being that the defendants held themselves out as persons skilled in the work of auditing and that a number of implied terms obliged the defendants to discharge their engagement as auditors of the plaintiff with reasonable care and skill to be expected of reasonably competent and prudent auditors.

3 An important parameter of the duties of care alleged and of the breaches of duty of care alleged concerns the allegation that in conducting the 1991 audit the three defendants:

(i) to prevent employees and management making false representations to the plaintiff with respect to expenses invoiced to the plaintiff;

(ii) to ensure that business related expenses incurred by employees and management were properly recorded;

(iii) to prevent employees and management from improperly authorising and effecting payments by the plaintiff of expenses which did not relate to their employment or the plaintiff’s business;

(iv) to ensure that the authorisation of company loans and increases in salary packages were properly effected;

(v) to prevent the misappropriation of the plaintiff’s money and property by employees and management;

(i) the then managing director of the plaintiff, Mr Morris was making false representations to the plaintiff with respect to the expenses which he invoiced to the plaintiff;

(ii) Mr Morris was improperly authorising and effecting payments of his personal expenses;

(iv) Mr Morris was using his position to instruct employees to arrange for payment by the plaintiff of his personal expenses;

(v) Mr Morris was improperly authorising and instructing employees to arrange for payment of invoices which did not relate to the plaintiff’s business;

(vi) Mr Morris was misappropriating the plaintiff’s money and property;

(vii) Mr Morris was improperly authorising increases in his salary and the methods of payment of his salary.

4 The claims made against the third defendant appear in paragraphs 1 to 14 and 97 to 100 of the Summons. They include allegations of breach of contract and or negligence and misleading or deceptive conduct within the meaning of s 52 of the Trade Practices Act and s 42 of the Fair Trading Act.

5 On 19 March 2003 the solicitors for the plaintiff sent its particulars of damage to the solicitors for the third defendant. In this letter the plaintiff advised that as a result of the third defendants alleged breaches of duty and or misrepresentations, the third defendant (amongst others) failed to advise the plaintiff of misappropriations being made by the plaintiff’s then managing director (Mr Morris). Further, the allegation is that as a result of the third defendant’s breaches, the plaintiff continued to employ Mr Morris until early 2001. The plaintiff claims amounts in respect of the misappropriations made by Mr Morris during the period 1989 to 2001.

6 A convenient summary of the further material allegations to be found in the Summons was prepared by the third defendant as follows:

· “The retainer contained a number of implied terms (paragraphs 6 and 7). The implied terms included advising and/or informing the plaintiff of deficiencies in its internal control system which might assist in the detection of "irregularities" by members of the plaintiff's staff.

· The firm conducted an audit for the year ended 31 December 1991 between December 1991 and about September 1992 (paragraph 8) which audit contained an unqualified audit opinion (paragraph 9).

· The firm was negligent in the conduct of the audit, broadly in its failure to advise as to the inadequacies of the plaintiff's internal accounting system in the detection of irregularities and the failure to discover and report on alleged failures by an employee, Mr Morris in respect of such irregularities (paragraphs 10 to 12).

· The breaches of retainer and negligence referred to above caused the plaintiff loss and damage (paragraph 14).

· Thereafter, from at least August 1993 the first and second defendants alone engaged in particular conduct relating to a retainer by them of the plaintiff, negligence and other matters (paragraphs 15 and following).

· This related to audits conducted for the years ended 31 December 1992 through to 31 December 2000 (inclusive) (see paragraphs 15 to 96 inclusive).

· The third defendant as a member of the firm in respect of the 1991 audit, made representations which contravened the statutory norms of conduct contained in either section 52 of the Trade Practices Act, 1974 (C'th) or Section 42 of the Fair Trading Act (1987) NSW which caused the Plaintiff to suffer loss (paragraph 97 ? 200 inclusive).

· Thereafter allegations of deceptive or misleading conduct against the First and Second Defendants only in respect of the 1992 to 2000 audits are made in paragraphs 101 to 112.

· The third defendant filed a Defence on 10 January 2003 which traversed the material allegations contained against it with the exception of admissions made concerning the period of partnership between the First, Second and Third Defendants (paragraph 2).

7 The Defence filed on 10 January 2003 raises "limitation defences" under:

“(a) Section 14(1) of the Limitation Act, 1969 (NSW) which applies to the allegations of breach of retainer and negligence;

(b) Section 82(2) of the Trade Practices Act, 1974 (C'th) which applies to the claim under Section 52 of the Trade Practices Act; and

8 On 14 March 2003 the plaintiff filed a Reply to the Defence of the third defendant in which it contended, inter alia, that the third defendant’s wrongful acts effectively concealed from the plaintiff its cause of action against the third defendant until February 2001.

The Issue on the Motion

9 The third defendant submits that the court should not follow what is put as obiter dicta reasoning by Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 588 - 591 where the relevant capacity in which the plaintiff had sued the defendants was his capacity as executor of the will of a deceased testatrix. The alleged negligence of the defendant solicitors had consisted of failure to take reasonable steps, following the death of the testatrix, to locate the executor of the will, and to put him in a position to commence administering the estate of the testatrix. The damage suffered in that case was in the main the deterioration of certain property which might reasonably have been expected to maintain its value had the executor entered upon the administration of the estate in due time. The duty of care of which the defendant solicitors were in breach, was a duty owed to the testatrix, and following her death, to her estate. It was a duty of care, breach of which could only be complained of by the executor after he had obtained a grant of probate and entered upon the administration of the estate. The solicitors alleged wrongdoing was to fail to take reasonable steps to locate the executor and bring his attention to the necessity of obtaining a grant of probate and entering upon the administration of the estate. This had occurred in circumstances where, before the death of the testatrix, there had been a personal falling out between the testatrix and the executor, and the executor might not have expected that he would even be mentioned in the will.

10 The above short summary is generally taken from the reasons given by Gleeson CJ in Sampson v Zucker [Court of Appeal, unreported, 11 December 1996].

11 As Gleeson CJ went on to say in Sampson, the consequence "of this was that the tortious act alleged against the solicitors, that is to say the failure to take reasonable steps to locate the executor and put him in a position where he could obtain a grant of probate, directly made it impossible for the cause of action against the defendant solicitors to be pursued. The cause of action was a cause of action for breach of duty of care which was owed to the testatrix and her estate; it was a cause of action that could only be pursued by the executor after he had obtained the grant of probate. But the negligent act of the solicitors in failing to locate the executor made it impossible for him to obtain a grant of probate during the limitation period. In other words, the very tortious act upon which the defendants were being sued made it impossible to sue them within the limitation period".

12 In those circumstances Deane J held that the cause of action was not statute-barred. A construction was given by him to section 14 (1) of the Limitation Act as excluding any period during which the wrongful act itself effectively precluded the institution of proceedings. The principle as enunciated was not one which was applied by the other members of the High Court.

13 Sampson was a case in which the plaintiff had sued his former solicitor for negligent advice; the action being commenced seven years after the advice was given and the damage was suffered. The Court in Sampson proceeded upon the assumption that the principle as put by Deane J. was correct and that section 14 bore the construction which his Honour placed upon it. However the Court held that the case then under consideration was not one in which the tortious act for which the solicitor was sued had effectively precluded the plaintiff from doing anything. There was no suggestion that the plaintiff might seek to lead evidence of any conduct of the solicitor after the date when the proceedings were settled, that precluded the plaintiff from taking independent legal advice and from doing whatever was necessary to pursue the cause of action there relied upon.

14 Further guidance with respect to the principle enunciated by Deane J. and in relation to the general rules relating to the statute barring of actions for professional negligence was given by Ipp JA in Cheney and Wilson v Duncan [2001] NSWCA 197:

” Te general rules relating to the statute barring of actions for professional negligence

23 Irrespective of whether the rule espoused by Deane J applies to this case, the general rules relating to the statute barring of actions for damages arising out of professional negligence are well-settled. The Deane J rule needs to be seen in the context of these general rules, which I set out below.
24 A cause of action is not complete until the plaintiff suffers actual (and not contingent or prospective) loss or damage: Hawkins v Clayton at 561 to 562, 588; 600 to 601; Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 530 to 531; Scarcella v Lettice [2000] NSWCA 289.
25 For a plaintiff's cause of action to be complete, the actual damage must be "measurable" ( Wardley at 531), or "beyond what can be regarded as negligible" (per Handley JA in Scarcella ).
26 A cause of action accrues when it is complete and, ordinarily, a cause of action for negligence first accrues when the plaintiff first suffers damage caused by the defendant's breach of duty: Hawkins v Clayton at 561 per Brennan J and 588 per Deane J; Pirelli General Cable Works Limited v Oscar Faber & Partners (a firm) [1983] 2 AC 1; Sampson v Zucker ( NSW Court of Appeal, unreported, 11 December 1996); Scarcella .
27 An action for damages against a solicitor, where the solicitor negligently fails to commence proceedings for a claim for personal injury within the statutory period, is a claim for damages for loss of a chance of recovering damages for those personal injuries: Johnson v Perez (1988) 166 CLR 351; Nikolaou v Papasavas , Phillips & Company (1989) 166 CLR 394 at 402 to 404. In such a case, the plaintiff's loss crystallises when the action becomes statute barred ( cf Johnson v Perez at 366 to 367).
28 Generally, where, through the negligence of solicitors, a client's cause of action becomes statute barred, the client's right of action in negligence against those solicitors accrues at the time the action becomes statute barred, and damages are to be assessed at that time: Nikolaou ; Scarcella ; Sampson v Zucker ; Registrar-General v Cleaver (1996) 41 NSWLR 713 per Clarke JA at 719; Hetherington v Mirvac Pty Limited (1999) Aust Torts Reports 81- 514; Crisp v Blake (1992) Aust Torts Reports 81-158; Toomey v WALS (1999) NSWSC 560; Wilson v Rigg [2000] NSWSC 16; Di Sante v Camando Nominees Pty Limited [2000] VSC 211; Doundoulakis v Antony Sdrinis & Co [1989] VR 781.
29 There is no "general overriding qualification" to the effect that a limitation period does not begin to run "until the stage is reached when the plaintiff discovers, or could on any reasonable inquiry have discovered, that the loss has been sustained": Wardley at 540 per Deane J; Hawkins v Clayton at 561 to 562 per Brennan J, at 587 to 588 per Deane J, at 599 to 601 per Gaudron J; Sampson v Zucker ; Scarcella .

The principle enunciated by Deane J in Hawkins v Clayton and its application

Hawkins v Clayton

a coincidence between the negligent conduct and the conduct that conceals from the plaintiff that he or she has a cause of action

Hawkins v Clayton

Sampson v Zucker

Scarcella

Toomey v WALS

Wilson v Rigg

Hetherington v Mirvac Pty Limited

[emphasis added]

15 The essence of the proposition for which the third defendant contends on this motion is that there is simply no relevant coincidence of the type necessary between the conduct underpinning the relevant causes of action pleaded and particularised by the plaintiff and the conduct which concealed from the plaintiff that it had a cause of action. [cf Cheney at para 31].

16 The short answer to this proposition as put by the plaintiff concerned drawing a vital distinction between on the one hand, a cause of action where a plaintiff has positive information [as for example information in respect of which the plaintiff may obtain otherwise legal advice] and on the other hand, a failure to inform which precludes a putative plaintiff from taking a relevant action. The distinction in terms of the solicitor cases is between being only able to prove the happening of an act of negligence of which the plaintiff was not aware, and being able, in addition, to show that the negligent act complained of caused the plaintiff to be so unaware. The proposition is that the case which the plaintiff here propounds concerns the closing by way of final completion of the carrying out of an audit, [not subsequently revised], and a circumstance in which the alleged acts by way of failure of the auditor to notify the plaintiff, as for example that there were no adequate systems or internal controls in place to achieve particular matters, or failing to report to the directors of the plaintiff that Mr Morris was acting in an entirely unauthorised and improper fashion. The proposition is that this was a once only event and, following the alleged failure of the third Defendant to notify the plaintiff accordingly, the plaintiff simply had no reason to know of the material acts of wrongdoing and inadequate systems or internal controls.

17 Mr Ashurst who appeared for the plaintiff gains some assistance in this regard from the judgment of Santow JA in Argyropoulos v Layton [2002] NSWCA 183; BC 200203324:

“In Wilson v Rigg Sperling J's reasoning proceeded on the following basis:

(a) the claim against the solicitor for failing to institute proceedings before 1 July 1992 was statute barred because some damage had occurred at that date, even though the period within which proceedings could be commenced was capable of being extended by the Court. He here sets out to follow a long line of authority which declined to follow Vulic v Bilinsky [1983] 2 NSWLR 472 which had held that time did not commence to run until the defendant raised the plea as a defence; see in particular Doundoulakis v Antony Sdrinis & Co [1989] VR 781, a decision of the Full Court of the Supreme Court of Victoria;
(b) thus while statutes of limitation do not operate to bar proceedings unless pleaded, barring as they do the remedy but not the right, that was not a relevant distinction because as from the time the limitation period expired the value of the cause of action was diminished by reason of the need to apply for leave thereafter to proceed;
(c) thus the cause of action was complete when damage first occurred, here the damage by reason of the limitation period under s52(4) expiring on 1 July 1992, so debarring the remedy for that cause of action by operation of s52(4), in the absence of leave;
(d) hence the plaintiff suffered no additional damage as a result of the alleged later breaches of duty, that is to say the breaches of duty in failing to seek leave, so that no further cause of action can therefore have arisen.

36 However, that result proceeds on the assumption that in the first assumed case, a solicitor who not only fails to commence proceedings within time but fails to tell the client he had a cause of action or that he should now make an application for leave, is not fairly and squarely within the principle enunciated by Deane J in Hawkins v Clayton (para 9(a) above). But clearly he is. For that principle would exclude from the period applicable under the relevant limitation statute, any time during which the wrongful act (here failing to advise as to the possibility of leave) effectively precluded the institution of proceedings . That situation would be very different from the situation before Wood CJ in CL in Hetherington v Mirvac Pty Ltd [1999] NSWSC 443; (1999) Aust Torts Reports 81-514 at 66-022 - 66-023. Wood CJ in CL applied what was said by Gleeson CJ in Sampson v Zucker (NSWSC, CA, 11 December 1996, unreported) so distinguishing the circumstances to which Deane J was addressing himself from the circumstances before him (as Sperling J points out at para 28 of his Judgment). …

54 In Doundoulakis v Antony Sdrinis & Co (supra), the Victorian Full Court held that where a client's cause of action for personal injuries lapsed by reason of the defendant solicitor's failure to institute proceedings in time, the client's damage was suffered (and his cause of action complete) when the limitation period governing the action on the client's cause of action expired. The Australian Torts Reporter [5-360 at 10,601] says that the decision is authority for the principle that the client's damage was suffered once and for all when the limitation period governing the action on the client's cause of action expired. In my view the case only considers the issue of an extension of time in determining whether damage accrued at the time of the statute operated to bar the action. The right to apply for an extension was argued by the defendant as a reason that no damage occurred at the time of the barring. Accordingly, I do not understand the case to be authority for whether any further damage could be sustained post the limitation bar. I refer here to the impairment (or ultimate extinction) of the chance afforded by the right to apply for leave, when there is delay (or complete failure) so to apply.

Scott v Echegaray

The failure so to inform the client constitutes a breach of this duty which continues for as long as the client remains ignorant of the fact that his cause of action has lapsed

Australian Torts Reporter

Scott

Such conduct had the effect of concealing the existence of the client's cause of action against the solicitor, which accrued on the expiration of the limitation period governing the client's personal injury action. As such, the

Australian Torts Reporter

correctly suggests that it would appear to come within the principle identified by Deane J in

Hawkins v Clayton

, especially as the breach of the duty to inform

[emphasis added]

Dealing with the Motion

18 In all of the circumstances it does not seem to me that the third defendant has discharged the necessary onus of establishing that the proceedings against him are statute barred for the reason that the limitation period "clearly applies and has expired"(Hillebrand v Council of the City of Penrith (2000) NSWSC 1058 Austin J. (BC200007069). This approach follows the statements by the High Court to the same effect in Wardley Australia Limited v The State of Western Australia (1992) CLR 514 at 533.

19 Here the case propounded is to the effect that the third defendant’s actions concealed the plaintiff’s cause of action thereby causing any possible limitation defences not to run (Hawkins v Clayton (1987) 164 CLR 539 at 589-590). The matter cannot be said to be beyond argument and the summary dismissal of the proceedings is not warranted for that reason. Nor, as the plaintiff submits, is the decision by the New South Wales Court of Appeal in Scarcella v Lettice (2001) 51 NSWLR at 302 contrary to this proposition. In Scarcella the defect was clearly discoverable and there was no question of concealment.

20 The plaintiff further seeks to rely upon the fact that in addition to the issue of concealment there are questions of when the third defendant’s duty of care and contractual duties to the plaintiff terminated. That is to say whether the breaches, being essentially failures to advise, could be described as a continuing duties (cf Argyropoulos v Layton). It is unnecessary for the above reasons to further examine this question.

21 The further submission relied upon Section 55 of the Limitation Act, 1969 (NSW). That section in broad terms provides that time will not otherwise run under a limitation period fixed by the Act during a period of fraud, deceit of concealment of the cause of action by the person relying upon the Defence.

22 The third defendant submits that Section 55, relevantly, sets out the only relevant exception which applies to the application of Section 14(1). This summary application is not an occasion for the court to deal with a matter of this significance which is not to be regarded as finally settled.

Orders

23 The notice of motion is dismissed. The third defendant is to pay the plaintiff’s costs of the motion.

I certify that paragraphs 1 -23
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 16 April 2003

Susan Piggott

Associate

Last Modified: 04/17/2003

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Citations

GMU Australia Pty Limited v Timothy Roger Davidson [2003] NSWSC 311

Most Recent Citation

State of New South Wales v NatWest Markets Australia No 2 Pty Limited [2006] NSWSC 751

Cases Citing This Decision

1

State of New South Wales v NatWest Markets Australia No 2 Pty Limited & ors [2006] NSWSC 751

Cases Cited

13

Statutory Material Cited

3

Hawkins v Clayton [1988] HCA 15

Cheney v Duncan [2001] NSWCA 197

CITATION:	GMU Australia Pty Limited v Timothy Roger Davidson & Ors [2003] NSWSC 311
HEARING DATE(S):	10/04/03
JUDGMENT DATE:	16 April 2003
JURISDICTION:	Equity Division Commercial Division
JUDGMENT OF:	Einstein J
DECISION:	Motion to be dismissed with costs.
CATCHWORDS:	Practice and Procedure - Motion to dismiss proceedings - Statute barring of actions - General rule as to when a cause of action accrues is subject to qualifications when the very act of negligence that inflicts the injury also has the effect of precluding the bringing of an action for damages - Need to establish a coincidence between the negligent conduct and the conduct that conceals from the plaintiff that he or she has a cause of action - relevance of failure to inform which precludes putative plaintiff from taking a relevant action
LEGISLATION CITED:	Fair Trading Act (1987) NSW Limitation Act, 1969 (NSW) Trade Practices Act 1974 (C'th)
CASES CITED:	Argyropoulos v Layton [2002] NSWCA 183; BC 200203324 Cheney and Wilson v Duncan [2001] NSWCA 197 Crisp v Blake (1992) Aust Torts Reports 81-158 Di Sante v Camando Nominees Pty Limited [2000] VSC 211 Doundoulakis v Antony Sdrinis & Co [1989] VR 781 Hawkins v Clayton (1988) 164 CLR 539 Hetherington v Mirvac Pty Limited (1999) Australian Torts Reports 81-514 NSWSC 443 Hillebrand v Council of the City of Penrith (2000) NSWSC 1058 Austin J. (BC200007069). Johnson v Perez (1988) 166 CLR 351 Nikolaou v Papasavas , Phillips & Company (1989) 166 CLR 394 Pirelli General Cable Works Limited v Oscar Faber & Partners (a firm) [1983] 2 AC 1 Registrar-General v Cleaver (1996) 41 NSWLR 713 Sampson v Zucker [NSWCA, unreported, 11 December 1996] Scarcella v Lettice (2000) 51 NSWLR 302 Toomey v WALS (1999) NSWSC 560 Vulic v Bilinsky [1983] 2 NSWLR 472 Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514 Wilson v Rigg (2002) 36 MVR 451; [2002] NSWCA 246
PARTIES :	GMU Australia Pty Limited (Plaintiff) Timothy Roger Davidson (First Defendant) David Charles Bracey (Second Defendant) Patrick Gerard O'Donoghue (Third Defendant)
FILE NUMBER(S):	SC 50167/02
COUNSEL:	M Ashhurst (Plaintiff/Respondent on the motion) J Buinet (First and Second Defendant) M McCulloch, Mr Stitt (Third Defendant/Applicant on the notice of motion)
SOLICITORS:	Clayton Utz (Plaintiff/Respondent on the motion) Herbert Geer & Rundle (First and Second Defendant) Ebsworth & Ebsworth (Third Defendant/Applicant on the notice of motion)