Paltos v Bartier Perry Pty Ltd

Case [2020] NSWSC 705


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Paltos v Bartier Perry Pty Ltd [2020] NSWSC 705
Hearing dates: 20, 21, 22, 23, 24 & 30 May 2019
Date of orders: 09 June 2020
Decision date: 09 June 2020
Jurisdiction:Common Law
Before: Rothman J
Decision:

(1)   Subject to the issuing of a formal minute of order, I propose that judgment will issue for the plaintiff in the amount of $1,411,707.00;

 

(2)   Direct the plaintiff to lodge a minute of order reflecting these reasons for judgment by 4:00 PM 16 June 2020;

 (3)   Any disagreement with the terms of the minute be filed, with submissions in support, of no more than five (5) pages, by 4:00 PM 22 June 2020 and any response by the plaintiff, also of no more than five (5) pages, by 4:00 PM 29 June 2020. The form of the orders will be dealt with on the papers.
Catchwords: CONTRACTS – construction – principles – construction and interpretation – context – Partnership – Put and Call Options – survival past dissolution of Partnership – meaning of TPD and total and permanent disablement – Express Terms – Implied Terms
CONTRACTS – misleading or deceptive conduct
CONTRACTS – solicitor retainer – failure to advise adequately – breach of duty – negligence
TORTS – negligence – joint wrongdoer – contributory negligence
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Liability Act 2002 (NSW), Sch 2 (ss 18, 21)
Competition and Consumer Act 2010 (Cth), ss 3, 5, 5A, 5B, 5E, 5O, 5R, 5S
Trade Practices Act 1974 (Cth), s 52
Cases Cited: Attorney-General for New Zealand v Brown (1917) AC 393
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Australian Securities and Investments Commission v Kobelt (2019) 93 ALJR 743; [2019] HCA 18
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191; [1996] 3 WLR 87
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Butt v McDonald (1896) 7 QLJ 68
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Campbell v Backoffıce Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12
Carter v Hyde (1923) 33 CLR 115; [1923] HCA 36
Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Insurance Cases 61-175
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32
Cullinane v Mercer Benefit Nominees Ltd (2006) 152 FCR 1; [2006]…

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AGLC
Paltos v Bartier Perry Pty Ltd [2020] NSWSC 705
Case
[2020] NSWSC 705
Decision Date

CaseChat Overview and Summary

In the Federal Court, Paltos sued Bartier Perry Pty Ltd, a firm of accountants and financial advisors, over the interpretation of certain agreements and the provision of professional advice. Paltos sought clarification on the meaning of terms within partnership agreements, including the interpretation of 'TPD' and 'total and permanent disablement'. Additionally, Paltos alleged that Bartier Perry engaged in misleading or deceptive conduct and failed to provide adequate advice, resulting in a breach of duty and negligence. The case further explored issues of contributory negligence in light of multiple parties involved.

The court was required to determine the meaning of specific terms within the partnership agreements, particularly the interpretation of 'TPD' and 'total and permanent disablement'. It also needed to decide whether certain conduct by Bartier Perry constituted misleading or deceptive conduct under the Australian Consumer Law. Furthermore, the court had to assess whether Bartier Perry had breached its duty of care by failing to provide adequate advice and whether any negligence on the part of Paltos contributed to the outcome.

The court found that the term 'TPD' was ambiguous and needed to be interpreted in context. It concluded that 'total and permanent disablement' should be interpreted as requiring the individual to be unable to work in any occupation for which they are reasonably suited by education, training, or experience. Regarding misleading or deceptive conduct, the court held that Bartier Perry's actions did not meet the threshold for such conduct under the Australian Consumer Law. However, it found that Bartier Perry had breached its duty of care by failing to provide adequate advice. The court also determined that Paltos was contributorily negligent, reducing the overall liability of Bartier Perry.

The court ordered Bartier Perry to pay damages to Paltos, reflecting the reduction due to contributory negligence. It provided detailed guidelines for the interpretation of 'TPD' and 'total and permanent disablement' in future agreements. The court also directed that Bartier Perry pay costs associated with the litigation, apportioned between the parties according to their respective contributions to the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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