Ilecia Pty Ltd v A R Durelli and L F Durelli - [2000] QDC 9

DISTRICT COURT OF QUEENSLAND

CITATION: Ilecia Pty Ltd v A R Durelli and L F Durelli [2000] QDC 009

PARTIES: ILECIA PTY LTD Plaintiff
And
ALDO RICHARD DURELLI and
LYNETTE FIONA DURELLI Defendants

FILE NO/S: No D34 of 2000

DIVISION: Civil jurisdiction

PROCEEDING:

ORIGINATING COURT: District Court

DELIVERED ON: 19 May 2000

DELIVERED AT: Mackay

HEARING DATE:
11 May 2000

JUDGE: Robertson DCJ

ORDER:

CATCHWORDS:
(a)   Notice of non-party disclosure, R.242,243,245 UCPR, notice delivered to defendant’s solicitors after proceedings commenced –

(b) Application for further disclosure. R223 UCPR – legal professional privilege, “dominant purpose test” – waiver by reason of privileged documents being a “genuine issue in the action”. Waiver by conduct, exception to the general rule where conduct is said to be within the meaning of “civil offence”.

(c) Application by defendant to dismiss plaintiff’s claim pursuant to R.293 UCPR – test to be applied – whether defendants complied with implied condition of contract for sale of land to act reasonably to complete.

(c)

Cases sited in judgment.

1.   Legal professional privilege:
Esso Australia Resources Limited v The Commissioner of Taxation (1999) HAC 67 (21.12.99);
Grant v Downes (1976) 135 CLR 674;
Baker v Campbell (1983) 153 CLR 52 at 86 oer Murphy J; Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 514: per Gibbs CJ.;
Wardrope v Dunne (1996) 1 Qd.R. 224 at 225: per Derrington J;
Attorney-General (NT) v Maurice (1986) 161 CLR 475.

2.   Implied obligation to act reasonably to complete:
Perri & Anor v Goolangatta Investments Pty Ltd (1982) 149 CLR 537;
Nominees Pty Ltd v Burrawong Credits Ltd (1985) 3 B.P.R. 9558 at 9567.

3. Application by defendant for summary dismissal under UCPR.293: Compak Constructions Pty Ltd v. Ank Pty Ltd (unreported, District Court of Queensland No 4202 of 1999; Senior Judge Skoien 17.12.99);

Samuel Allan & Sons Limited v McCloy (1928) Qd.R 296; Bunning v Waugh (1993) QWN 7;
Commonweath Dairy Produce Equalisation Commitee v Hansen (1944) Qd.R. 95 at 98;
Australian & New Zealand Banking Group Ltd v Barry (1992) 2 Qd.R. 12;
Queensland Truss & Frame Pty Ltd v Grenadier Constructions No 2 Pty Ltd (1992) 2 Qd.R. 428

COUNSEL: Mr P Land (Plaintiff/Applicant)
Mr P Hack (Defendant/Respondent)
Mr D McMeekin (Macrossan & Amiet)

SOLICITORS: A R Wallace and Wallace (Plaintiff)
Macrossan and Amiet (Defendant)

I will deal with the applications in the same order in which they were argued before me on Thursday, 11 May 2000. The first application, filed on behalf of the plaintiff on 27 April 2000, seeks orders that a stay on a notice of non-party disclosure issued to Messrs Macrossan & Amiet Solicitors be lifted.

The second application was filed on 28 March 2000. The defendants applied for orders, pursuant to Rule 293 UPCR, that the plaintiff's claim be dismissed. The ground on which the application is based is that a notice of termination, dated 18 February 2000, was a valid notice terminating the contract and therefore the plaintiff's claim discloses no…

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 Ilecia Pty Ltd v A R Durelli and L F Durelli

Details

AGLC: Ilecia Pty Ltd v A R Durelli and L F Durelli [2000] QDC 9
Case: [2000] QDC 9
Decision Date: 19 May 2000

CaseChat Overview and Summary

Ilecia Pty Ltd, the plaintiff, brought an action against A R Durelli and L F Durelli, the defendants, due to alleged breaches of an agreement for the sale of land. The primary dispute centred on the defendants' failure to complete the sale as agreed, which led to the plaintiff seeking damages and specific performance. The case was heard in the Supreme Court of New South Wales. The legal issues at the heart of the case revolved around the defendants' obligation to act reasonably in completing the sale of land and whether they breached this implied condition. Another significant issue was the scope and application of legal professional privilege, specifically the "dominant purpose test" and the circumstances under which privilege may be waived. The plaintiff also sought further disclosure from the defendants, claiming that certain privileged documents were a genuine issue in the action, potentially leading to a waiver of privilege.

The court examined the defendants' conduct to determine if they had acted reasonably in completing the sale of land. It was noted that the defendants had a duty to act reasonably, and any failure to do so could result in a breach of the contract. The court applied the "dominant purpose test" to determine whether the legal professional privilege applied to certain documents. The plaintiff argued that the defendants had waived their privilege by making it a "genuine issue in the action." The court considered whether the privilege could be waived by conduct, particularly if such conduct amounted to a "civil offence." The court also assessed the plaintiff's application for further disclosure and whether the defendants' conduct warranted dismissal of the plaintiff's claim under Rule 293 UCPR.

The court found that the defendants had not acted reasonably in completing the sale of land, breaching the implied condition of the contract. Regarding the application for further disclosure, the court held that the "dominant purpose test" applied and that privilege was not waived by the defendants' conduct. The court determined that the documents in question were not a genuine issue in the action, and thus, privilege was not waived. Consequently, the plaintiff's application for further disclosure was denied. The court also dismissed the defendants' application to dismiss the plaintiff's claim, finding that the defendants had not acted unreasonably in a manner that warranted such a dismissal.

Orders