Mills Oakley Lawyers (A Partnership) v Connolly

Mills Oakley Lawyers (a partnership) appealed to the Supreme Court of Queensland against a decision of the Queensland Civil and Administrative Tribunal (QCAT) which had found the firm liable for misleading and deceptive conduct under the *Australian Consumer Law* (ACL). The dispute arose from a retainer agreement between Mills Oakley and Mr. Connolly, where the firm acted for Mr. Connolly in relation to a property development. Mr. Connolly alleged that Mills Oakley had engaged in misleading and deceptive conduct by failing to advise him of the potential for a significant increase in stamp duty payable on the transfer of the property, which he claimed was a foreseeable risk.

The primary legal issue before the Supreme Court was whether Mills Oakley's conduct in failing to advise Mr. Connolly about the potential increase in stamp duty constituted misleading or deceptive conduct within the meaning of section 18 of the ACL. This required the Court to consider whether the firm had made a representation or engaged in conduct that was likely to mislead or deceive, and whether such conduct was in trade or commerce. The Court also had to determine whether the failure to advise on this specific risk amounted to a breach of the firm's duty of care to its client.

Justice Hartnett reasoned that the scope of the retainer was crucial in determining the firm's obligations. He found that the retainer did not extend to providing advice on potential changes in taxation law or the specific risk of increased stamp duty, which was a speculative future event. The Court held that while a solicitor owes a duty of care to their client, this duty is defined by the terms of the retainer. In the absence of a specific request or an explicit assumption of responsibility for advising on such future legislative changes, the failure to volunteer information about a speculative risk did not amount to misleading or deceptive conduct under the ACL. The Court distinguished between a failure to disclose a known fact or a reasonably foreseeable risk that is material to the client's decision-making, and a failure to predict future legislative changes.

The appeal was allowed, and the decision of QCAT was set aside.