Hanave Pty Ltd v Lfot Pty Ltd

FEDERAL COURT OF AUSTRALIA

Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 1568

TRADE PRACTICES – liability for contravention of s 52 Trade Practices Act 1974 (Cth) (“the TP Act”) arising from sale of shopping centre determined in previous proceedings – determination of cross-claim and liability of second and third respondents in respect of the contravening conduct of the first respondent under s 75B of the TP Act – cross-respondent was director of company purchasing shopping centre and also the solicitor acting for the purchaser – whether the cross-respondent was acting in the capacity of solicitor for the applicant prior to the exchange of contracts for the purchase of the relevant property – whether retainer implied by conduct.

NEGLIGENCE – solicitor – breach of retainer – implied retainer – whether solicitor acting for purchaser had a duty to make proper inquiries or to provide advice that inquiries be made prior to the exchange of contracts, in relation to the contract for sale of the property and its provisions concerning the solvency or financial standing of tenants.

EQUITY – cross-respondent’s liability in equity to make contribution to the cross-claimants’ liability for damages – power to order equitable contribution in relation to a liability to pay damages under s 82 of the TP Act – whether there existed a common obligation or co-ordinate liability between the parties to the cross-claim – assessment of the proportion and amount of contribution.

DAMAGES – assessment of damages on the claim and cross-claim – consideration of valuers’ reports in respect of the determination of damages.

Trade Practices Act 1974 (Cth) ss 52, 75B, 82

Bialkower v Acohs Pty  Ltd & R A Bashford Consulting Pty Ltd (1998) 83 FCR 1, followed

Street & Halls v Retravision (NSW) Pty Ltd (1995) 56 FCR 588, cited
Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd (unreported, Young J, Supreme Court of NSW, 15 July 1996), considered

Jones v Mortgage Acceptance Nominees (1996) 63 FCR 418, considered

Re Steel [1979] Ch 218, cited
Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281, applied

Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd [1995] FCA 671, applied

HANAVE PTY LIMITED v LFOT PTY LIMITED (formerly JAGAR PROJECTS PTY LIMITED)(Cross-Claimant) and PAUL EWEN MITCHELL TRESIDDER(Cross-Claimant) and JOSEPH RAYMOND GLEW(Cross-Claimant) and ROBERT BURKE (Cross-Respondent)
NG 721 of 1995

MOORE J
11 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 721 OF 1995

BETWEEN:

HANAVE PTY LIMITED
Applicant

AND:

LFOT PTY LIMITED (formerly JAGAR PROJECTS PTY LIMITED)
First Respondent/Cross-claimant

PAUL EWEN MITCHELL TRESIDDER
Second Respondent/Cross-claimant

JOSEPH RAYMOND GLEW
Third Respondent/Cross-claimant

ROBERT BURKE 
Cross-respondent

JUDGE:

MOORE J

DATE OF ORDER:

11 NOVEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Subject to order 2, the first and second respondent pay the applicant the sum of $750,000  by way of damages.

2.At the time of satisfaction of order 1, the cross-respondent pay the…