Howarth & Anor v Miotti & Anor - [2009] QSC 96

SUPREME COURT OF QUEENSLAND

CITATION:

Howarth & Anor v Miotti & Anor [2009] QSC 96

PARTIES:

LYN GARY HOWARTH and
CHRISTINE JOY HOWARTH
(plaintiffs)

v

STEVE MIOTTI
(first defendant)

and

REDCHIP LAWYERS
(second defendant)

FILE NO:

5542 of 2006

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

30 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 10, 18 December 2008

JUDGE:

A Lyons J

ORDER:

The Claim is dismissed

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – RETAINER – EXTENT OF RETAINER – IN RELATION TO PROPERTY TRANSACTIONS – where contract failed to settle – where plaintiff claimed solicitor failed to advise contract had not settled – where plaintiff claimed solicitor failed to advise of any action to be taken – where contract mutually terminated

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – whether the clients’ evidence must be accepted in the absence of a solicitor’s file note – where solicitor failed to keep proper file notes – where plaintiff claims solicitor acted without instructions

Land Sales Act 1884 (Qld)

Adamson v Williams [2001] QCA 38, considered

Berrivale Orchards v Blakes (a firm) unreported No 194 of 1991, considered

Davies v Camilleri (2000) 10 BPR 18,345, considered

Dew v Richardson [1999] QSC 192, considered

Fox v Everingham (1983) 50 ALR 337, considered

Griffiths v Evans [1953] 1WLR 1424, considered

Hill v Van Erp (1995) 188 CLR 159, followed

Littler & Anor v Price & Ors [2004] QCA 383, followed

COUNSEL:

J C Faulkner for the plaintiffs
P J Davis SC, with him D S Piggott for the first and second defendants

SOLICITORS:

HW Litigation for the plaintiff
Lynch and Company Solicitors for the first and second defendants

A Lyons J

The background and the issues

In February 2000, Lyn Gary Howarth and Christine Joy Howarth (“the Howarths”) entered into an arrangement to “purchase off the plan,” a unit in a Gold Coast development called Kirra Beach Apartments. They paid large sums of money directly to Michael Murgia, (“Murgia”) who was the sole director of Magnamain Investments Pty Ltd, which was developing the apartment complex. The Howarths say that the monies were paid on the basis of Murgia’s statement that they would receive a significant discount if they paid the purchase moneys “up front”. Despite the fact that the Howarths paid large sums of money to Murgia and entered into possession of the Unit in October 2002, the settlement of the Contract scheduled for December 2002, never proceeded. The Howarths were ultimately evicted in 2006, by the mortgagee in possession. The Howarths are now divorced.

Murgia’s whereabouts are not known. The Howarths however, now bring an action against Steve Miotti, (“Miotti’) a solicitor and Redchip Lawyers (“Redchip”). Miotti has been a solicitor since 1987, practising predominantly in the areas of property transactions and at the relevant time was employed by Redchip. The basis of the action…

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 Howarth & Anor v Miotti & Anor

Details

AGLC: Howarth v Miotti [2009] QSC 96
Case: [2009] QSC 96
Decision Date: 30 April 2009

CaseChat Overview and Summary

The plaintiffs, Howarth and another, brought a case against the defendants, Miotti and another, regarding alleged professional negligence in property transactions. The plaintiffs argued that the defendants, as solicitors, failed to advise them that a contract had not settled and did not inform them of any necessary actions to be taken. This failure, the plaintiffs claimed, was due to the defendants' negligence. The dispute was heard in a court in Australia, which had to determine whether the defendants' actions constituted negligence under the law.

The central legal issues the court had to decide were whether the plaintiffs' evidence should be accepted in the absence of any proper file notes from the defendants and whether the plaintiffs had established that the defendants acted negligently. The court had to consider the weight and credibility of the plaintiffs' evidence and assess whether the defendants' failure to maintain proper file notes affected the outcome. Additionally, the court needed to determine whether the plaintiffs had proved that the defendants acted without proper instructions or that there was a breach of duty on the part of the defendants.

In reaching its decision, the court examined the evidence presented by the plaintiffs and the absence of any proper file notes from the defendants. The court concluded that the plaintiffs had not sufficiently established the alleged negligence on the part of the defendants. The lack of proper documentation from the defendants made it difficult to assess the credibility of the plaintiffs' claims. The court found that the plaintiffs had not proved that the defendants failed to advise them adequately or that they acted without proper instructions. Consequently, the court dismissed the claim, holding that the plaintiffs had not met the burden of proving negligence.

The court's final order was to dismiss the claim brought by the plaintiffs against the defendants. The plaintiffs' allegations of professional negligence were not substantiated due to the lack of credible evidence and the absence of proper documentation from the defendants. The court ruled that the plaintiffs had not proven their case, and thus, the claim was dismissed.

Orders

Orders of the court

The Claim is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Howarth & Anor v Miotti & Anor [2009] QSC 96
PARTIES:	LYN GARY HOWARTH and CHRISTINE JOY HOWARTH (plaintiffs) v STEVE MIOTTI (first defendant) and REDCHIP LAWYERS (second defendant)
FILE NO:	5542 of 2006
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	30 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	8, 9, 10, 18 December 2008
JUDGE:	A Lyons J
ORDER:	The Claim is dismissed
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – RETAINER – EXTENT OF RETAINER – IN RELATION TO PROPERTY TRANSACTIONS – where contract failed to settle – where plaintiff claimed solicitor failed to advise contract had not settled – where plaintiff claimed solicitor failed to advise of any action to be taken – where contract mutually terminated TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – whether the clients’ evidence must be accepted in the absence of a solicitor’s file note – where solicitor failed to keep proper file notes – where plaintiff claims solicitor acted without instructions Land Sales Act 1884 (Qld) Adamson v Williams [2001] QCA 38, considered Berrivale Orchards v Blakes (a firm) unreported No 194 of 1991, considered Davies v Camilleri (2000) 10 BPR 18,345, considered Dew v Richardson [1999] QSC 192, considered Fox v Everingham (1983) 50 ALR 337, considered Griffiths v Evans [1953] 1WLR 1424, considered Hill v Van Erp (1995) 188 CLR 159, followed Littler & Anor v Price & Ors [2004] QCA 383, followed
COUNSEL:	J C Faulkner for the plaintiffs P J Davis SC, with him D S Piggott for the first and second defendants
SOLICITORS:	HW Litigation for the plaintiff Lynch and Company Solicitors for the first and second defendants