MGM Containers Pty Ltd v Wockner

[2006] QCA 502

SUPREME COURT OF QUEENSLAND

CITATION:

MGM Containers P/L v Wockner [2006] QCA 502

PARTIES:

MGM CONTAINERS PTY LIMITED ACN 002 776 294
(plaintiff/respondent)
v
GEOFFREY ANTHONY WOCKNER TRADING AS WOCKNER PARTNERS
(defendant/appellant)

FILE NO/S:

Appeal No 9554 of 2006
SC No 4649 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGES:

Williams and Keane JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – THIRD PARTY AND SIMILAR PROCEEDINGS – respondent issued proceedings against appellant, its former solicitor, for damages for breach of contract and negligence arising out of respondent’s purchase of shopping centre – appellant sought leave to file and serve third party proceedings against additional advisors retained by respondent to advise it in the transaction – discretion – whether primary judge’s discretion miscarried in refusing leave to issue third party proceedings

Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd [2001] QCA 48; Appeal No 5723 of 2000, 27 February 2001, followed

Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471, cited

COUNSEL:

M M Stewart SC for the appellant
C Heyworth-Smith for the respondent

SOLICITORS:

Sparke Helmore for the appellant
TressCox for the respondent

1. WILLIAMS JA:  I agree with the reasons for judgment of Chesterman J and with the order proposed by him.

1. KEANE JA:  I agree with the reasons of Chesterman J and with the order proposed by his Honour.

1. CHESTERMAN J:  On 17 May 1998 Mr Lim and Ms Thong retained Short Punch & Greatorix, solicitors (‘SPG’), to act for them in the preparation of contracts to purchase the Bridge Point East shopping centre at Woody Point.  A contract was duly executed by the purchasers on 9 June 1998.  The purchase price was $4,180,000.  The contract was conditional upon the purchasers, on or before 16 July 1998, obtaining satisfactory finance to enable them to complete the purchase.  They were unable to obtain such finance and the vendor refused to extend the date for obtaining it, but offered instead to execute another, unconditional contract of purchase, for the same price.

1. On 15 July 1998, the appellant, who practices as a solicitor, was orally retained by Mr Lim and Ms Thong to act in connection with the purchase of the shopping centre in place of SPG whose retainer was terminated.

1. On 22 July 1998 Mr Lim and Ms Thong executed a second contract which committed them unconditionally to complete the purchase.  On or about 30 July 1998 the purchasers agreed with the vendor that the respondent company should be substituted as the purchaser, all other terms remaining unchanged.  Mr Lim has at all relevant times been a director of the respondent.  Ms Thong has been a director since…