Mujkic Family Company Pty Ltd v Clarke and Gee Pty Ltd

The Supreme Court of Tasmania, constituted by Blow CJ, Brett J, and Marshall AJ, considered a dispute between Mujkic Family Company Pty Ltd (in liquidation) and Clarke and Gee Pty Ltd. The core of the disagreement concerned whether the solicitors, Clarke and Gee Pty Ltd, owed a duty of care to the company in liquidation when they were instructed by the company's officers to apply for the termination of its winding-up.

The central legal question before the court was whether the solicitors' actions in pursuing the termination of the winding-up, despite the company being in liquidation, gave rise to an arguable duty of care owed to the company itself. This involved an examination of the nature of the solicitors' retainer and the circumstances under which a duty of care might extend beyond the immediate client to the entity they represented, particularly when that entity was in a state of liquidation.

The court's reasoning focused on the established principles of professional negligence and the scope of a solicitor's duty of care. It considered whether the instructions given by the company's officers created a situation where the solicitors ought reasonably to have foreseen that their conduct could cause harm to the company. The court analysed the potential conflict between the instructions of the officers and the interests of the company as a separate legal entity, especially in liquidation, and whether the solicitors' actions were consistent with their professional obligations. The court ultimately found that there was an arguable case that the solicitors owed a duty of care to the company.