Maidment v Davis - [2000] SASC 191

MAIDMENT v DAVIS

[2000] SASC 191

Full Court: Doyle CJ, Duggan and Lander JJ

DOYLE CJ. I would allow the appeal in this matter, set aside the judgment entered in favour of the plaintiff, and order that there be substituted for that judgment a judgment dismissing the plaintiff’s claim against the defendant. I agree with the reasons of Lander J. There is nothing that I wish to add to those reasons.
DUGGAN J. In my view this appeal should be allowed for the reasons given by Lander J.
LANDER J. The appellant was the defendant in proceedings brought by the respondent in the Magistrates Court. I shall refer to the parties as plaintiff and defendant.
On15 March 1999 the plaintiff, Ms Roma Davis, commenced proceedings against the defendant claiming that the defendant was liable to her for the sum of $10,000 and interest for breach of statutory duty, breach of trust and in the further alternative negligence. The Magistrate found the defendant was in breach of a statutory duty owed by the defendant to the plaintiff and further was negligent and therefore liable to the plaintiff in the amount claimed. He assessed interest at $2,500. Judgment was entered for the plaintiff for $12,500 together with the plaintiff’s costs.
The defendant appeals against both the judgment and the award of interest.
The defendant is a solicitor who in 1993 practised in premises adjacent to another legal practitioner, Mr Gannon.
The plaintiff was a director of Fairline Pty Ltd which was a special purpose company incorporated for entering into transactions for the purchase of land.
Quinbeau Pty Ltd (Quinbeau) was a company under the control of Mr Gannon’s family companies. On 5 November 1992 Quinbeau entered into a contract to purchase land at O’Halloran Hill (the O’Halloran Hill land) from Investment Properties Pty Ltd and Rudolf Bodonyi. The purchase price was $245,000. Settlement was to be on 15 December 1992.
On 12 November 1992 Quinbeau entered into a contract to sell the O’Halloran Hill land to Berrimall Pty Ltd (Berrimall). The sale price was $1,884,000. A deposit of $10,000 was payable on or before execution of the contract. The contract provided that the sum of $10,000 was to be paid and held by a stakeholder. The contract did not nominate the stakeholder.
The contract was subject to a further special condition relating to the development of the property and subject to the vendor obtaining a loan of not less than $1,000,000 for the purpose of that development.
The contract provided in Annexures A and B for the purchaser delivering to the vendor a deed of guarantee and indemnity in a form approved by the vendor whereby the guarantor would guarantee to the vendor the punctual payment to the purchaser of all monies due by the purchaser to the vendor. Specifically the guarantor was to be a related corporation approved by the vendor.
The contract contemplated the carrying out of building work over a period of up to and including 1 March…

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 Maidment v Davis

Details

AGLC: Maidment v Davis [2000] SASC 191
Case: [2000] SASC 191
Decision Date: 29 June 2000

CaseChat Overview and Summary

The appeal was brought by the defendant, Sydney G Maidment, a solicitor, against a judgment entered in favour of the plaintiff, Roma Davis, for $12,500 together with interest and costs. The plaintiff had sued the defendant for breach of statutory duty and alternatively for negligence for failing to pay the plaintiff the sum of $10,000 and interest which had been paid into the defendant’s trust account by the plaintiff. The plaintiff claimed that the defendant had failed to pay her the deposit which she had paid into the defendant’s trust account for the purpose of paying the deposit on the Berrimall/Fairline contract. The learned Magistrate found the defendant was in breach of a statutory duty owed by the defendant to the plaintiff and further was negligent and therefore liable to the plaintiff in the amount claimed. The defendant appealed against both the judgment and the award of interest. The Full Court allowed the appeal, set aside the judgment entered in favour of the plaintiff, and ordered that there be substituted for that judgment a judgment dismissing the plaintiff’s claim against the defendant. The court held that the plaintiff did not have a cause of action against the defendant because she was not the person entitled to the money within the meaning of s 31 of the Legal Practitioners Act. The court also held that the plaintiff’s claim in negligence failed because the defendant did not owe the plaintiff a duty of care. The court further held that the Magistrate had erred in law in applying Rule 124 of the Magistrates Court (Civil) Rules to fix the rate of pre-judgment interest at 10 per cent per annum. The court held that the rate of interest for pre-judgment interest should have been 8 per cent.

Orders