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Howlett v Dobson Mitchell & Allport (No 2)

Howlett v Dobson Mitchell & Allport (No 2)

Case [2009] TASSC 47 29 June 2009

Limitation Periods

Res Judicata

Estoppel

Civil Litigation & Procedure

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[2009] TASSC 47

CITATION: Howlett v Dobson Mitchell & Allport (No 2) [2009] TASSC 47

PARTIES:  HOWLETT, Colin Horace and
  HOWLETT, Roslyn Gladys
  trading as C H & R G HOWLETT
  v
  DOBSON MITCHELL & ALLPORT (A FIRM)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  465/2004
DELIVERED ON:  29 June 2009
DELIVERED AT:  Hobart
HEARING DATE:  18 June 2009
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court Procedure – Tasmania – Procedure under Rules of Court – Pleadings – Application to strike out reply – Plea of estoppel in response to limitation of actions plea – Claim for relief under the Fair Trading Act 1990 (Tas), s41, for misleading or deceptive conduct in response to a limitation of actions plea – Whether pleas disclose a reasonable answer.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
             Plaintiffs:  P W Tree SC
             Defendants:  D J Gunson SC
Solicitors:
             Plaintiffs:  Butler McIntyre & Butler
             Defendants:  Gunson Williams

Judgment Number: [2009] TASSC 47
Number of paragraphs: 18

Serial No 47/2009
File No 465/2004

HOWLETT & ANOR v DOBSON MITCHELL & ALLPORT (NO 2)

REASONS FOR JUDGMENT HOLT AsJ

29 June 2009

The plaintiffs' writ against their former solicitors, claiming damages for breach of contract and negligence, was issued more than six years after the accrual of the causes of action. The defendants have pleaded the protection of the time bar provided in the Limitation Act 1974, s4(1)(a). The plaintiffs have delivered a reply alleging that their failure to sue in time was due to a misrepresentation made by a member of the firm of solicitors. They say that because of it the defendants are estopped from relying on the limitation defence. Alternatively, they say that the misrepresentation constituted a breach of the Fair Trading Act 1990 and that the appropriate relief is to prevent the defendants from relying on the defence. The defendants say that the matters raised in the reply are without any prospect of success and the pleading should be struck out.

Rule 259 relevantly provides:

"If a pleading does not disclose a reasonable … answer … the Court or a judge may order:–
(a) that … the pleading be struck out …".

In brief summary the plaintiffs' statement of claim is as follows. On 17 August 1987 they became entitled to payment of the sum of $18,654. Under the contract, by which the debt arose, the amount outstanding carried interest at 18% per annum compounded at six monthly intervals. They sued the debtor. In May 1990 they changed solicitors engaging the defendants to act for them in the litigation. There was no claim for interest at the contract rate and the defendants took no steps to amend the claim to include such interest. Under the Limitation Act, s4(5), an action to recover the interest could not be brought more than six years after the interest became due. Accordingly, interest arrears progressively became irrecoverable from 17 August 1993. On 28 May 1998 the plaintiffs terminated the retainer and engaged…

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 Howlett v Dobson Mitchell & Allport (No 2)

Details

AGLC: Howlett v Dobson Mitchell and Allport (No 2) [2009] TASSC 47
Case: [2009] TASSC 47
Decision Date: 29 June 2009

CaseChat Overview and Summary

The case of Howlett v Dobson Mitchell & Allport (No 2) involved a dispute between Howlett, the plaintiff, and Dobson Mitchell & Allport, the defendants. Howlett sought relief under section 41 of the Fair Trading Act 1990 (Tas) for misleading or deceptive conduct. The defendants responded with a plea of limitation of actions, to which Howlett counter-responded with a plea of estoppel. The case was heard in the Supreme Court of Tasmania. The central legal issues revolved around whether the pleas of estoppel and limitation of actions disclosed a reasonable answer, particularly in the context of the defendants' application to strike out Howlett's reply.

The court was tasked with determining whether Howlett's plea of estoppel adequately responded to the defendants' plea of limitation of actions. This required an analysis of the requirements for a valid plea of estoppel in the context of a limitation of actions plea, as well as the standard of proof necessary to establish such a plea. Additionally, the court needed to consider whether the pleadings as a whole disclosed a reasonable answer to the claim, as required by the relevant rules of court. The defendants argued that Howlett's plea of estoppel was insufficient because it did not meet the threshold of raising a reasonable answer to the limitation of actions plea.

In reaching its decision, the court considered the content and adequacy of Howlett's plea of estoppel and whether it sufficiently responded to the defendants' plea of limitation of actions. The court found that Howlett's plea did not disclose a reasonable answer, as it failed to adequately address the specific facts and circumstances that would justify the application of estoppel in this context. The court emphasised the need for pleadings to meet the standard of disclosing a reasonable answer, and that Howlett's plea fell short of this requirement. Consequently, the court granted the defendants' application to strike out Howlett's reply. The court's decision underscored the importance of ensuring that pleadings are precise and meet the necessary legal standards, particularly in relation to pleas of estoppel in response to limitation of actions pleas. The final order was that Howlett's reply was to be struck out, and the defendants' plea of limitation of actions was upheld.

Orders