JUDGE:	DODDS-STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2005
DATE OF JUDGMENT:	15 April 2005
CASE MAY BE CITED AS:	Mcleod and anor v Munro
MEDIUM NEUTRAL CITATION:	[2005] VSC 375

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Hayes, Q.C. with Ms S. Fregon	Michael Brereton & Co
For the Defendant	Dr M. Collins	Mallesons Stephen Jaques

HER HONOUR:

In this proceeding, by summons filed 21 March 2005, the defendant, Kevin Munro, seeks an order pursuant to s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that the proceeding issued in this Court be transferred to the Supreme Court of New South Wales.

The application is supported by the affidavit of John Waters sworn 21 March 2005 and by the affidavit of Peter Stockdale sworn 12 April 2005, save for certain specific paragraphs, or parts thereof, of Mr Stockdale’s affidavit.

The plaintiffs, David McLeod and GDK Financial Solutions Pty Ltd (“GDK”), oppose the application. The plaintiffs rely on the affidavit of Miranda Ball sworn 5 April 2005 and the second affidavit of Ms Ball sworn 14 April 2005 (save for parts of paragraph 12).

The present proceeding was commenced by writ and statement of claim dated 17 February 2005 in the Commercial List of this Court. By the statement of claim, it is alleged that the first plaintiff (the director of the corporate second plaintiff) was a licensed financial planner. The corporate plaintiff conducted a finance and investment consulting business. It managed partnerships which invested in retirement villages. Its principal place of business and its registered office between May 1999 and April 2002, were the offices of the defendant, Mr Munro, situated in Macquarie Street, Sydney.

The other two directors of GDK were Mr Munro and a Mr Woodham. GDK was the trustee of a trust, the beneficiaries of which were the family trusts of the three directors, Messrs McLeod, Munro and Woodham.

It is alleged that Mr Munro, a solicitor admitted to practice and carrying on business in New South Wales, held himself out as a specialist in corporate and taxation advice. The plaintiffs allege that in early 1998, Mr Munro advised Mr McLeod on the application of certain Corporations Law provisions, a tax ruling in relation to a Werribee retirement village project, and the structuring of the investment. In particular, it is alleged that Mr Munro advised that a prospectus was not necessary and that if the partnership had fewer than 15 members, it would not affect Mr McLeod’s licence. It is not specifically alleged where that initial advice was given, but it is alleged that it was confirmed on 30 June 1998 at a meeting in Melbourne, which was attended by Mr Sent and Ms Porter of Primelife.

It is further alleged that, relying on the advice, Mr McLeod…

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 Mcleod v Munro

Details

AGLC: McLeod v Munro [2005] VSC 375
Case: [2005] VSC 375
Decision Date: 15 April 2005

CaseChat Overview and Summary

McLeod and GDK Financial Solutions Pty Ltd brought proceedings against Kevin Munro, alleging that Munro, a solicitor, failed to advise them on the introduction and implications of the management investment scheme provisions of the Corporations Law effective from 1 July 1998, or alternatively to advise them to obtain independent legal advice. Munro applied to transfer the proceedings to the Supreme Court of New South Wales, which McLeod and GDK opposed. The central issue for the court was whether the proceedings should be transferred to New South Wales under s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

The court considered the various connecting factors to determine the more appropriate forum in the interests of justice. The court noted that the second plaintiff was registered and had its principal place of business in New South Wales, and that the other parties were residents of New South Wales. The court also noted that there were other proceedings more directly involving the same issues, the subject of this proceeding, in New South Wales, and that the exit agreement, which was a substantial claim in this proceeding, was governed by the law of New South Wales. The court further noted that the Primelife proceedings in the Federal Court in Melbourne, while involving related or overlapping issues, did not involve, as a core issue, the ambit of Munro's professional retainer, which was at issue in the present proceeding.

The court concluded that the preponderance of relevant connecting factors favoured New South Wales, and that on balance the more appropriate forum was New South Wales. The court noted that while the plaintiffs had preferred to retain Victorian counsel and that McLeod regularly visited Melbourne for various purposes, this could not outweigh all of the other factors combined which established that on balance the more appropriate forum was New South Wales. The court found that the preponderance of relevant connecting factors favoured transfer, and if there was any burden, it was in this case, discharged.

The court ordered that the proceedings be transferred to the Supreme Court of New South Wales.

Orders