Mohammed v Perkins Property Group Pty Ltd
[2010] QDC 288
•30 July 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Mohammed v Perkins Property Group Pty Ltd & Anor [2010] QDC 288
PARTIES:
YUSOF ALI MOHAMMED
(Plaintiff)
v
PERKINS PROPERTY GROUP PTY LTD (ACN 118 480 032)
(First Defendant)
KENNETH POINTON
(Second Defendant)FILE NO/S:
295 of 2008
DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
District Court, Cairns
DELIVERED ON:
30 July 2010
DELIVERED AT:
Cairns
HEARING DATE:
13-15 July 2010
JUDGE:
Everson DCJ
ORDER:
The claim against the first defendant and the claim against the second defendant are dismissed.
CATCHWORDS:
STATUTES – INTERPRETATION – PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 (QLD) – APPOINTMENT OF REAL ESTATE AGENT - Whether commission recoverable pursuant to Property Agents and Motor Dealers Act 2000 (Qld) – Whether defendant failed to bring to the plaintiff’s attention information in the appointment, contrary to the Property Agents and Motor Dealers Act 2000 (Qld) – Whether defendant was validly appointed where appointment was not signed and dated by the first defendant, contrary to the Property Agents and Motor Dealers Act 2000 (Qld) – Whether non-compliance with approved form
TORT – NEGLIGENCE – DUTY OF CARE – DUTY OF SOLICITORS –Whether second defendant breached the duty of care it owed to the plaintiff,
CONTRACT – BREACH – IMPLIED TERMS – RETAINER WITH SOLICITOR – Whether second defendant breached the implied terms of its retainer with the plaintiff
COUNSEL:
M Jonsson for the plaintiff
J Jacobs for the first defendant
D Morzone for the second defendantSOLICITORS:
Williams Graham Carman for the plaintiff
O’Reilly Stevens Bovey for the first defendant
Miller Bou-Samra for the second defendant
Introduction
In this proceeding the plaintiff claims the recovery of commission in the sum of $155,100 he alleges was unlawfully paid to the first defendant real estate agent upon the sale of part of the sugar cane farm he owned at Mount Peter Road, Edmonton (“the property”). The plaintiff also claims the same sum against the second defendant, the solicitor, who acted on his behalf in respect of the conveyance of the property. He alleges that the second defendant paid the amount of $155,100 to the first defendant contrary to his instructions, thereby breaching the implied terms of the second defendant’s retainer and also the duty of care owed by the second defendant to him.
Factual background
The plaintiff gave evidence that he was approached by Robyn Perkins, a real estate agent representing the first defendant, in February 2007. She wanted to know whether he was interested in selling his cane farm and he said he was, provided she could obtain a sale price of $4 million or better. He alleges that this led to the signing of an appointment of real estate agent in Form 21a pursuant to the Property Agents and Motor Dealers Act 2000 (“PAMDA”)[1]. It is uncontroversial that this document (“the appointment”) was signed by the plaintiff and Ms Perkins on behalf of the first defendant on 13 February 2007. It stated that the appointment was to be an exclusive agency for a period between 13 February 2007 and 13 April 2007. Although it is dated within the panel providing for the plaintiff’s signature it is not dated within the panel providing for the signature on behalf of the first defendant. This panel is signed by Ms Perkins on its behalf.
[1]Ex 1A
The appointment provides for a reserve price of $4 million in circumstances where there is to be sale by tender. Part 10 provides for commission. It states that the commission is to be expressed in both a dollar amount and as a percentage, however the commission is only expressed as a percentage, being 3% and is otherwise blank. Relevantly, standard clause 2 of the attached terms and conditions of the appointment provides that the plaintiff agrees to pay the commission specified in the appointment if a contract of sale of the property is entered into with a buyer and, inter alia, is completed.
The plaintiff is adamant that it was agreed between him and Ms Perkins that under no circumstances was he to pay the commission and that prior to entering into the appointment it was clearly agreed that under no circumstances was he obliged to pay the commission. He also alleges that Ms Perkins failed to explain to him the difference between an exclusive agency and a sole agency and of the consequences of an appointment of the first defendant as an exclusive agent.
Although the plaintiff kept a diary which he agreed under cross-examination contained what he perceived as being the important things worth recording each day[2], he failed to record any agreement reached with the first defendant concerning the payment of commission in different terms to that set out in the appointment.
[2]Ex 4
Ms Perkins gave evidence on behalf of the first defendant. She alleges that she visited the plaintiff at his shed on 13 February 2007 with a copy of the draft appointment. She alleges that she told him that she had two buyers interested in the property and that she worked only on an exclusive agency. She asserts that she would not approach a prospective purchaser without a signed appointment as an exclusive agent and she required this to occur before proceeding further. Ms Perkins maintains that she spent approximately one hour explaining the appointment to the plaintiff and definitely explained the difference between a sole, open and exclusive agency. With respect to commission, she alleges that she told the plaintiff that she worked on 3% commission for the sale of a cane farm and that wherever possible she tried to get the developer or purchaser to pay the commission. She believes that she went through each individual part of the form 21a prior to entering into the appointment with the plaintiff on behalf of the first defendant.
The plaintiff does not dispute that Ms Perkins spent in the order of one hour with him on the occasion the appointment was discussed and signed. Over the next few days Ms Perkins was able to negotiate two offers to purchase the property. A number of attendances by Ms Perkins at the plaintiff’s shed are recorded in his diary.
The plaintiff sought the assistance of his daughter, Sarah-Jane Mohammed, who had previous experience as a legal secretary. She provided some advice in an email to him dated 20 February 2007[3]. A discussion then took place between Ms Perkins, the plaintiff and Sarah-Jane Mohammed using the email as a point of reference. Part of the email was altered by Ms Perkins to state that a prospective contract should provide that the purchaser pay the real estate agent’s commission on the sale of the property. Ms Perkins gave evidence that the altering of the email in this regard occurred pursuant to her representation that she would try her hardest to get the purchaser to pay the commission which she did in fact do. Indeed, it appears that she was successful in negotiating this concession from the prospective purchasers of the property,[4] however, this was not reflected in the ultimate contract of sale in respect of the property dated 8 May 2007 (“the contract”).[5] The reason for this is that the plaintiff relied upon his daughter to engage the second defendant and negotiate the contract on his behalf and she failed to instruct the second defendant to include a clause in the contract requiring the purchaser to pay the first defendant’s commission.
[3]Ex 1 at p 34
[4]See ex 9, 10 and 11
[5]Ex 1 at pp 9-31
It was not until settlement had been completed at the Lake Street branch of the National Australia Bank that the plaintiff discovered that a bank cheque had been drawn and made payable to the first defendant in respect of the commission. By this time the other parties to the settlement had left and so too had the representative of the second defendant with the bank cheque payable to the first defendant. The plaintiff instructed Sarah-Jane Mohammed to immediately telephone the second defendant’s office to in his words, “stop the cheque”.[6] What Sarah-Jane Mohammed did is then a matter of considerable controversy. It appears she telephoned the second defendant’s office using the telephone of the bank manager, Mr Nelson. The making of a telephone call by her on his telephone was witnessed by him, the plaintiff and his wife, Jennifer Mohammed. The records pertaining to the bank’s telephone service relevantly record a three minute twenty-one second telephone call made to the second defendant’s office at 2.31 pm.[7]
[6]T1 50/30-40
[7]Ex 3
There is an apparently corresponding message taken by Maree Mazur who, at that time, worked for the second defendant as a part-time secretary. Part of her duties included answering the telephone. She took a telephone message requesting that Mr Sneddon, the solicitor who had the carriage of the plaintiff’s conveyancing file, telephone Mr Nelson on his number. The message reads – “re Mohammed. Pls call one sorted”. It is not marked urgent.[8]
[8]Ex 2
There have been a number of inconsistent attempts to plead not only the time at which the telephone conversation made by Sarah-Jane Mohammed using the telephone in Mr Nelson’s office occurred, but also the identity of the person with whom she spoke and the contents of it.[9] Ultimately, under cross-examination she conceded that she was not sure that she did not speak to the receptionist, Ms Mazur. In response to a question inquiring whether she made it clear that she wished to speak to the person who had the conduct of the file in order to pass on such critical information, she responded:-
“As far as I am concerned if I ring and speak to Ken Pointon’s office it’s irrelevant who was tasked to deal with the file. I spoke with a representative from Ken Pointon’s office and advised them of that.”[10]
[9]Ex 5
[10]T1-96/10-20
Ms Mazur gave evidence of the standard procedure for posting cheques out after settlement which involved faxing a pre-prepared letter to the recipient of the cheque and then posting that letter with the attached cheque at the close of business that day. This evidence was confirmed by Mr Sneddon, the solicitor who had the conduct of the file in the office of the second defendant and his principal Mr Pointon. The letter sending the cheque for commission from the second defendant to the first defendant is exhibit 13. It contains a notation at the bottom right hand corner that it was faxed at 4.30 pm on 17 December. It contains a notation in the top left hand corner “original received 18/12/07”. I therefore infer that the cheque in payment of the first defendant’s commission was sent out on evening of 17 December 2007 and received by the first defendant the following day.
The trainee solicitor at the office of the second defendant, Melanie Coste, gave evidence that she was never instructed by Sarah-Jane Mohammed to stop the payment of a cheque. She further gave evidence that had she been given instructions that commission had been wrongly paid and to retain a cheque she would have discussed it with the solicitor who gave her the file, Mr Sneddon and retained the cheque. A telephone message slip from the records of the second defendant dated 18 December 2007 is in evidence, which shows that Sarah-Jane Mohammed rang at 2.15 pm and again at 4.05 pm. The first message is in the terms, “RE Collection of chq – advised we will get back to her when chq available.” The second message is in the following terms – “phd back 16.05 claims urgent – s said uwld no what about”.[11] Ms Coste gave evidence that she had a telephone conversation with Sarah-Jan Mohammed a few days later wherein Ms Mohammed asked why the commission cheque had been paid to the first defendant. Ms Coste stated that Ms Mohammed wanted to know whether “she could get the cheque for commission back” and was advised that she could not.[12]
[11]Ex 16
[12]T2-95/1-10
Kenneth Douglas Pointon gave evidence that at the relevant time he was the principal of the second defendant law firm of the same name. he stated that Sarah-Jane Mohammed gave him the instructions concerning the contract and the conveyance of the property and that he was not told by her that there was an agreement whereby the buyer would pay the first defendant’s commission on the sale. In his considerable experience as a conveyancer he would not expect to see such a term as his experience was that it is the vendor who would normally pay the real estate agent’s commission. Mr Pointon also gave evidence of the staff employed by him and of the standard procedures utilised at the relevant time in his office. Significantly he asserted that his first contact with Sarah-Jane Mohammed following settlement of the contract was when he received a telephone call from her “a day or two days after settlement”. Mr Pointon stated that the communications with her were in the following terms:-
“Sarah said to me that she and her father had perused the settlement statement and had noted that a cheque had been drawn to the agent. She then asked me if the agent cheque was still on file. I didn’t have the file in my room at the time, it would have been with Mr Sneddon. I obtained the file, had a look on it and said to Sarah, “No, the cheque’s been dispatched to the agent in the normal course after settlement.” Sarah then proceeded to tell me that there was an agreement between the agent and her father that the – the buyer would pay the commission and was there anything that could be done about that.”[13]
[13]T2 – 53/10-30
Mr Pointon thereafter stated that he discussed with her the special conditions of the contract and confirmed that there was nothing in the contract which required the buyer to pay the commission on the sale. He offered to look at the appointment and advise her further. However, he did not have a copy of it on his file. Sarah-Jane Mohammed then emailed him further documentation on 19 December 2007. At no point did she take issue with the fact that the cheque in payment of the commission had been dispatched to the first defendant.
The plaintiff’s causes of action
In his further Amended Statement of Claim the plaintiff’s cause of action against the first defendant is restricted to a claim based on s 140 of PAMDA. Section 140 is in the following terms:-
“140 Restriction on recovery of reward or expense – no proper authorisation etc.
(1) A person is not entitled to sue for, or recover or retain, a reward or expense for the performance of an activity as a real estate agent unless, at the time the activity was performed, the person –
(a) held a real estate agent’s licence: and
(b) was authorised under the person’s licence to perform the activity; and
(c) had been properly appointed under division 2 by the person to be charged with the reward or expense.
(2) A person who sues for, or recovers or retains, a reward or expense for the performance of an activity as a real estate agent other than as provided by subsection (1) commits an offence.”
The plaintiff alleges that the first defendant was not properly appointed by the plaintiff under division 2 because the first defendant failed to:-
1. bring to the plaintiff’s attention the information in the appointment about the effect of an open listing, an exclusive agency and a sole agency and the differences between a sole agency and an exclusive agency contrary to s 134A of PAMDA;
2. specifically bring to the plaintiff’s attention the information in the appointment about the consequences for the plaintiff if the land was sold by someone other than the first defendant during the term of the appointment contrary to s 135(1)(d) of PAMDA;
3. stipulate the commission payable for the nominated services in the manner required by the approved form contrary to s 133(3)(c)(i) and s 134(1) of PAMDA,
4. stipulate when the commission payable for nominated services would become payable contrary to s 133(3)(d) of PAMDA; and
5. stipulate that the express commission payable for the nominated services (namely 3%) was to be calculated by reference to the sale price and would be worked out only on the actual sale price achieved contrary to s 133(3)(e) of PAMDA.
The plaintiff also alleges that the first defendant was not properly appointed under division 2 because the appointment was not signed and dated by the first defendant contrary to s 133(7) of PAMDA.
Relevant provisions of Chapter 5, Part 2, Division 2 of PAMDA are as follows:-
“133 Appointment of real estate agent—general
(1) A real estate agent must not act as a real estate agent for a person (client) to perform an activity (service) for the client unless—
(a) the client first appoints the real estate agent in writing; or
(b) a previous appointment by the client is assigned to the real estate agent under the terms of that appointment or under section 135A and the appointment is in force.
Maximum penalty – 200 penalty units(2) The appointment may be for the performance of—
(a) a particular service (single appointment); or
(b) a number of services over a period (continuing appointment).(3) The appointment must, for each service—
(a) state the service to be performed by the real estate agent and how it is to be performed; and
(b) state, in the way prescribed under a regulation, that fees, charges and commission payable for the service are negotiable up to any amount that may be prescribed under a regulation; and
(c) state—(i) the fees, charges and any commission payable for the service; and
(ii) the expenses, including advertising and marketing expenses, the agent is authorised to incur in connection with the performance of each service or category of service; and
(iii) the source and the estimated amount or value of any rebate, discount, commission or benefit that the agent may receive in relation to any expenses that the agent may incur in connection with the performance of the service; and
(iv) any condition, limitation or restriction on the performance of the service; and(d) state when the fees, charges and any commission for the service become payable; and
(e) if the service to be performed is the sale or letting of property or the collecting of rents and commission is payable in relation to the service and expressed as a percentage of an estimated sale price or amount to be collected, state that the commission is worked out only
on the actual sale price or the amount actually collected; and
(f) if the appointment is for a sole or exclusive agency, state the date the appointment ends.(4) A continuing appointment must state—
(a) the date the appointment ends; and
(b) that the appointment, other than to the extent it relates to the sale of land or interests in land, may be revoked on the giving of 90 days notice, or some lesser period (not less than 30 days) agreed by the parties.(5) The notice revoking a continuing appointment must be by signed writing given to the other party.
(6) The revocation of a continuing appointment does not affect existing contracts entered into by the real estate agent on behalf of the client.
(7) The appointment must be signed and dated by the client and the real estate agent or someone authorised or apparently authorised to sign for the agent.
(8) The real estate agent must give a copy of the signed appointment to the client.
Maximum penalty – 200 penalty units(9) If an appointment under this section authorises a sale by auction, an appointment under section 210 is not required.
(10) This section does not apply if the service to be performed is
the sale of livestock.134 Form of appointment
(1) The appointment must be in the approved form.(2) The approved form must include a prominent statement that the client should seek independent legal advice before signing the appointment.
(3) An appointment that does not comply with subsection (1) is ineffective from the time it is made.
134A Pre-appointment advice about types of appointment
If the appointment is for the sale of a place of residence or land or an interest in a place of residence or land, before the appointment is signed, the real estate agent must specifically bring to the client’s notice the information in the form of appointment about—
(a) the effect of the following—(i) an open listing;
(ii) an exclusive agency;
(iii) a sole agency; and(b) the difference between sole agency and exclusive agency.
Maximum penalty – 200 penalty units135 Appointment of real estate agent—sole and exclusive agencies
(1) If the appointment is for a sole or exclusive agency, before the appointment is signed, the real estate agent must discuss with the client whether the appointment is to be for a sole agency or an exclusive agency and specifically bring to the client’s notice the information in the form of appointment about—(a) the proposed term of the appointment; and
(b) if the appointment is for the sale of residential property, the client’s entitlement to negotiate the term of the appointment up to a maximum term of 60 days; and
(c) the difference between sole agency and exclusive agency, unless the information has been brought to the client’s notice under section 134A; and
(d) the consequences for the client if the property is sold by someone other than the agent during the term of the appointment.
Maximum penalty – 200 penalty units(2) The appointment may include provision that, at the end of the term of a sole or exclusive agency, the appointment of the agent continues under an open listing that may be ended at any time by the agent or the client.
(3) Subsection (1)(b) does not apply if the appointment—
(a) is for the sale of 3 or more resident properties; or
(b) is for the sale of a lot in a community titles scheme as part of the sale of management rights to the person who is to become the letting agent for the community titles scheme.
...”
As against the second defendant, the plaintiff alleges that he is liable to the plaintiff to account for the amount of $155,100 paid by the second defendant to the first defendant in breach of the plaintiff’s instructions and otherwise without lawful authority or justification. As noted in the introduction, this course of action is pleaded in both contract and tort.
The plaintiff’s claim against the first defendant
I accept the evidence of Ms Perkins concerning the manner in which she negotiated the terms of the appointment between the plaintiff and the first defendant and that she explained to him the effect of, and the differences between, the different types of agency referred to in s 134A of PAMDA. I accept that in the hour she spent with the plaintiff she fully explained the consequences for the plaintiff if the land was sold by someone other than the first defendant during the term of the appointment.
The main area of contention between her evidence and that of the plaintiff is whether in the course of negotiating the appointment she stated that the purchaser was to pay the first defendant’s commission in any event. As noted earlier, this assertion is contrary to clause 2 of the standard terms and conditions of the appointment.[14] I accept the evidence of Ms Perkins that she merely informed the plaintiff that she would try to get the purchaser to pay the commission owing to the first defendant. My impression is that the plaintiff is confusing the subsequent discussion with Ms Perkins in the presence of his daughter Sarah-Jane Mohammed with the negotiations concerning the entry into the appointment. It is at this subsequent meeting that the email sent by Sarah-Jane Mohammed to the plaintiff on 20 January 2007 was altered to reflect the intention that the contract include a condition that the purchaser pay the commission. It is significant that an entry in the plaintiff’s diary of the same date records “buyer to pay commission” but there is no similar entry prior to this time.[15] As noted earlier, had Sarah-Jane Mohammed conveyed these instructions to the second defendant it appears that the purchaser would have agreed to such a condition.
[14]Ex 1A
[15]Ex 4
Although Part 10 of the Form 21a provided that the commission payable must be expressed both as a dollar amount and as a percentage apparently of the reserve price set out in Part 7 thereof, a dollar amount was not included in Part 10. The form itself is a little ambiguous stating that “Commission expressed as an amount represents the commission payable if the property is rented at the listed charge (see Part 7 above)”. In this instance the property was in fact listed for sale at a reserve or listing price of $4 million which was the alternative provided for in Part 7. The failure of Ms Perkins to include a dollar amount as well as a percentage is alleged by the plaintiff to constitute not only breaches of s 133(3)(c)(i) and s 133(3)(e) of PAMDA but also s 134(1) as the appointment was not in the approved form. There is a further breach alleged in relation to commission, in that Part 10 also contains a panel which provides for when the commission is payable. This has been left blank which is alleged to constitute a breach of s 133(3)(d). However, clause 2 of the standard terms and conditions of the appointment makes it clear that when this is to occur and in this instance this was upon completion of the contract. The final deficiency alleged by the plaintiff is that Ms Perkins omitted to date the appointment when she signed it as provided for in panel 13. It is alleged that this constitutes a breach of s 133(7) of PAMDA.
In Project Blue Sky Inc v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ stated :-
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.” [16]
[16](1998) 194 CLR 355 at 388-9
Their Honours went on to observe that “various factors have proved decisive in various contexts” but there is “no decisive rule that can be applied”.[17] The question therefore arises whether there can be discerned a legislative purpose to invalidate an appointment that fails to comply with the provisions identified above. The objects of PAMDA are relevantly set out in s 10 in the following terms:-
[17]Ibid
“10 Objects
(1) The main object of this Act is to provide a system for licensing and regulating persons as resident letting agents, real estate agents, pastoral houses, auctioneers, property developers, motor dealers and commercial agents, and for registering and regulating persons as registered employees, that achieves an appropriate balance between –
(a) The need to regulate for the protection of consumers; and
(b) The need to promote freedom of enterprise in the market place.
(2) Another significant object of this Act is to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property.”
The evidence before me does not demonstrate that the plaintiff was concerned that the amount of the commission was excessive. His concerns appeared to focus upon the obligation to pay commission at all. He nominated a reserve price of $4 million in the appointment. He achieved a sale price of $4.7 million through the efforts of the first defendant.[18] In a leading text on statutory interpretation the following observation appears:-
“If great inconvenience or injustice will follow from requiring strict compliance with a provision, the courts are disinclined to hold that the provision imposes an obligation and this (is) even though it may be couched in mandatory terms.”[19]
If the technical breaches outlined above were found to have the consequence that the first defendant was not properly appointed under Chapter 5 Part 2 Division 2 of PAMDA, it will not be entitled to any commission despite obtaining a sale price for the plaintiff which is significantly greater than that for which he was prepared to sell the property. The first defendant, through the efforts of Ms Perkins, also apparently obtained an agreement that this commission was to be paid by the purchaser but this was not given effect through no fault of the first defendant.
[18]Ex 1 p 10
[19]D C Pearce and R S Geddes, Statutory Intepretation Australia 6th Ed, Lexus Nexus Australia 2006 at para 11.19
Can it be said that the objects of PAMDA in regulating real estate agents for the protection of consumers and protecting consumers against undesirable practices warrant a finding that the first defendant has not been properly appointed pursuant to s 140? I am of the view that the technical breaches do not warrant such a conclusion. The plaintiff was under no misapprehension that commission was payable upon the sale of his property and the amount of the commission payable upon the sale of the property is readily ascertainable from a perusal of the appointment despite the technical non-compliances referred to above. The same is true in respect of the failure to date the appointment a second time. There is no doubt that the date it was entered into was 13 February 2007 and this is the date which appears in the panel next to the signature of Mr Mohammed.
To the extent that it is also alleged that there is a breach of s 134 of PAMDA because the appointment is not in the approved form, reference is made to s 49 of the Acts Interpretation Act 1954 (“AIA”) which is, relevantly, in the following terms:-
“49 Forms
(1) If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.(2) If a form prescribed or approved under an Act requires –
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included in, attached to or given with the form; or
(c) the form, or information or documents included in, attached to or given with the form, to be verified in a specified way;
the form is not properly completed unless the requirement is complied with.”
Given the interpretation of the requirements of PAMDA referred to above I am of the view that substantial compliance with Form 21a is sufficient and that on the facts as found by me, there was substantial compliance.
The plaintiff’s claim against the second defendant
The plaintiff alleges that in failing to stop the payment of the commission cheque to the first defendant following Sarah-Jane Mohammed’s telephone conversation on 17 December 2007, the second defendant both breached the duty of care it owed the plaintiff and the implied terms of its retainer with the plaintiff to act only on and in accordance with the instructions given by the plaintiff, to exercise reasonable care, skill and diligence and discharge the plaintiff’s instructions in a good, proper and professional manner. The duty of care owed by a solicitor to a client includes the ordinary duty of care arising under the common law of negligence by which a solicitor is bound to exercise due care, skill and diligence.[20]
[20]Hawkins v Clayton (1988) 164 CLR 539 at 574-575
I accept the evidence of Ms Coste, Ms Mazur, Mr Sneddon and Mr Pointon where it conflicts with that of Sarah-Jane Mohammed. I find that the only telephone communication with the second defendant prior to this law firm releasing the commission cheque to the first defendant was between Sarah-Jane Mohammed and Ms Mazur. This communication by Sarah-Jane Mohammed failed to effectively convey the plaintiff’s instructions to stop the cheque in sufficient time. It did not convey the urgency of the situation nor what action was required to be taken. In the circumstances, the plaintiff has not satisfied the onus of proving that the second defendant did not discharge the implied terms of his retainer or otherwise breach the duty of care he owed the plaintiff to exercise due care, skill and diligence in attending to his instructions.
Conclusion
I dismiss the claim against the first defendant and I dismiss the claim against the second defendant.
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