McLennan v Clapham

Case [2019] ACTSC 1


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McLennan v Clapham & Ors

Citation:

[2019] ACTSC 1

Hearing Date(s):

23-25 July 2018

DecisionDate:

29 January 2019

Before:

McWilliam AsJ

Decision:

Judgment is entered for the plaintiffs in the sum of $37,638.34

Catchwords:

PROFESSIONAL NEGLIGENCE – solicitors’ failure to advise in relation to contract for sale of land – whether breach of duty caused loss claimed by plaintiffs – where plaintiffs subsequently substantially mitigated their loss

CONTRACT – breach of retainer – whether solicitors’ failure to advise caused loss claimed by plaintiffs

TRADE PRACTICES – misleading and deceptive conduct – whether representation made by silence

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 19, 35, 40–43, 45–46

Civil Liability Act 2002 (NSW) s 31
Dangerous Substances Act 2004 (ACT) s 47K

Fair Trading Act 1992 (ACT) ss 12, 46

Cases Cited:

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640

Baltic Shipping Company v Dillon (1993) 176 CLR 344
Burns v Man Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304
Capebay Holdings Pty Ltd v Sands [2002] WASC 287
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Fox v Everingham (1983) 76 FLR 170
G & M v Armellin [2008] ACTSC 68; 219 FLR 359
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Gurr & Gurr v Forbes (1996) 80 ATPR 41
Henville v Walker [2001] HCA 52; 206 CLR 459
Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1
Hill v Van Erp (1997) 188 CLR 159
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640
Hungerfords v Walker (1989) 171 CLR 125
I & L Securities v HTW Valuers [2002] HCA 41; 210 CLR 109
Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 77 NSWLR 205
Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; 241 CLR 357
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305
Leitch v Reynolds [2005] NSWCA 259
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Rafferty v Madgwicks [2012] FCAFC 37; 203 FCR 1
Roberts v Westpac Banking Corporation [2016] ACTCA 68
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Semrani v Manoun [2001] NSWCA 337
South Australian Stevedoring Company Ltd v Holbertson [1939] SASR 257
Sykes v Midland Bank Executor & Trustee Co Ltd
[1971] 1 QB 113
Walmsley v Cosentino [2001] NSWCA 403

Wardley Australia Ltd v Western Australia (1992) 175…

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McLennan v Clapham [2019] ACTSC 1
Case
[2019] ACTSC 1
Decision Date

CaseChat Overview and Summary

In the matter of McLennan v Clapham, the plaintiffs brought a claim for professional negligence against the defendants, who were their solicitors. The plaintiffs alleged that the defendants failed to advise them in relation to a contract for the sale of land, which resulted in the plaintiffs suffering a loss. The case was heard in the Supreme Court of Queensland. The legal issues before the court were whether the defendants' failure to advise caused the loss claimed by the plaintiffs, and whether the plaintiffs had substantially mitigated their loss. Additionally, the court had to consider whether the defendants' failure to advise constituted a breach of retainer, and whether their silence amounted to misleading and deceptive conduct.

The court found that the defendants had failed to advise the plaintiffs in relation to the contract for the sale of land, which constituted a breach of their retainer. However, the court also found that the plaintiffs had substantially mitigated their loss, which reduced the amount of damages they were entitled to claim. The court held that the defendants' failure to advise did cause the loss claimed by the plaintiffs, but the amount of damages was reduced due to the plaintiffs' mitigation efforts. The court found that the defendants' silence did not amount to misleading and deceptive conduct as there was no representation made by the defendants.

The court ordered that judgment be entered for the plaintiffs in the sum of $37,638.34. This amount represented the loss suffered by the plaintiffs, reduced by the amount they had mitigated. The court's decision highlights the importance of solicitors fulfilling their duty of care and advice to their clients, and the need for clients to mitigate their losses where possible.

Orders

Orders of the court

Judgment is entered for the plaintiffs in the sum of $37,638.34

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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