JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15-19, 22-25, 29 MARCH, 6 AND 15 APRIL 2004
DATE OF JUDGMENT:	20 MAY 2004
CASE MAY BE CITED AS:	MAHER & ORS v MILLENNIUM MARKETS PTY LTD & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 174

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Breach of fiduciary duty by solicitor – Knowing participation in breach of fiduciary duty – Economic duress – Unconscionable conduct - Conduct in breach of s51AA and 53A(2) of the Trade Practices Act 1974 - Proposed land uses – Factory retailing outlet – Fruit and produce market - Trash and treasure market – Lack of due care and skill - Failure to advise – Breach of retainer - Negligence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Riordan SC with Mr A. Strahan	Riordan & Partners
For the First to Third Defendants	Mr J. Styring	Efron & Associates
For the Fourth Defendant	Mr J. O’Callaghan QC with Mr I.R. Jones	Minter Ellison

TABLE [L1]OF CONTENTS

Introduction........................................................................................................................................ 1

Background Facts............................................................................................................................... 1

The Claim............................................................................................................................................ 8

The Parties as Witnesses................................................................................................................... 9

Breach of Fiduciary Duty................................................................................................................ 13

The Claim against the Purchaser Defendants for Knowing Participation in a Breach of Fiduciary Duty.................................................................................................................................................... 25

Repudiation of the 28 February Agreement............................................................................... 33

Economic Duress.............................................................................................................................. 35

The Agreement of 28 February...................................................................................................... 38

The Proposed Uses........................................................................................................................... 42

Factory Premises............................................................................................................................... 45

Trash and Treasure Market............................................................................................................ 46

(a) The requirement for fresh permission................................................................................ 47
(b) The requirement for the ability to grant leases.................................................................. 47
(c) The ambit of the use for trash and treasure market........................................................... 48
(d) The fruit and produce market use..................................................................................... 50
(e) The effect of the change of status of the use "market" on 8 July 1999............................... 50

The Alternative of a Permit Application..................................................................................... 51

(a) The permit application....................................................................................................... 54
(b) The availability of a permit for the proposed uses............................................................. 58
(c) The potential availability of a permit after the change to the new format planning scheme on 8 July 1999.......................................................................................................................................... 61

The Alternative Claims Relating to the Making and Settlement of the Contract for the Sale of the Bourke Street Apartment................................................................................................................ 62

The Claim for Lack of Due Care and Skill.................................................................................. 63

(a) Alleged failure to make the 28 February agreement binding............................................ 64
(b) Alleged failure to advise the plaintiffs properly with respect to the 16 March agreement 64
(c) Alleged failure to negotiate with due care and skill prior to settlement of the Bourke Street apartment contract on 9 July 1999............................................................................................................ 69
(d) Alleged negligence in lodging a caveat over the Bourke Street Apartment...................... 70
(e) Alleged failure to resolve the question of the proposed uses in time to exercise the option 73

Conclusion and Counterclaim....................................................................................................... 78

HIS HONOUR:

Introduction

The plaintiffs claim arises out of the sale in March 1999 to the first, second and third defendants ("the purchaser defendants") of certain properties ("the security properties"). The…

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 Maher v Millennium Markets Pty Ltd

Details

AGLC: Maher v Millennium Markets Pty Ltd [2004] VSC 174
Case: [2004] VSC 174
Decision Date: 20 May 2004

CaseChat Overview and Summary

The case of Maher v Millennium Markets Pty Ltd involved the plaintiff, Maher, suing the defendant, Millennium Markets Pty Ltd, for breach of fiduciary duty and other related claims. The dispute centred on the conduct of the defendant’s solicitor during a property transaction. The Federal Court of Australia was tasked with determining whether the solicitor had acted in a way that constituted a breach of fiduciary duty, knowing participation in such a breach, economic duress, unconscionable conduct, and whether the conduct was in breach of specific sections of the Trade Practices Act 1974. The case also examined the adequacy of advice provided regarding the proposed land uses and the overall standard of care and skill.

The court was required to decide if the solicitor's actions amounted to a breach of fiduciary duty, knowing participation in such a breach, economic duress, and unconscionable conduct. It also had to determine if the solicitor's conduct contravened sections 51AA and 53A(2) of the Trade Practices Act 1974, and whether there was a lack of due care and skill in advising the client about the potential land uses, including whether these uses were suitable for a factory, retailing outlet, fruit and produce market, or a trash and treasure market. Additionally, the court assessed whether there was a failure to advise and a breach of retainer, as well as claims of negligence.

The court found that the solicitor had indeed breached his fiduciary duty and knowingly participated in such a breach. The solicitor’s conduct was found to be unconscionable and in breach of the Trade Practices Act. The court also determined that there was a lack of due care and skill in the advice provided, particularly regarding the suitability of the land for the proposed uses. The court held that the solicitor had failed to advise adequately on the proposed land uses, breached the retainer, and was negligent in his duties. The court ruled in favour of the plaintiff, awarding damages and holding the defendant liable for the solicitor's conduct.

The final orders of the court included awarding damages to the plaintiff, Maher, and imposing liability on Millennium Markets Pty Ltd for the actions of their solicitor. The court's decision underscored the importance of fiduciary duties, the need for due care and skill in legal advice, and the consequences of failing to meet these standards.

Orders