Paltos v Bartier Perry Pty Ltd - [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] FCAFC 82
Dew v Richardson [1999] QSC 192
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613
Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213
Hawkins v Commonwealth Bank of Australia (1996) 66 IR 322
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15
Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41; [1984] HCA 64
Hurley v McDonald’s Australia Ltd [1999] FCA 1728
In the Estate of A.P. Kearney [1937] 44 WN(NSW) 117
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keddie v Stacks/Goudkamp Pty Ltd (2012) 293 ALR 764; [2012] NSWCA 254
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Kekatos v Sanson & Anor [2009] NSWCA 171
Koompahtoo Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
Law Society of Singapore v Uthayasurian Sidambaram (2009) 4 SLR 674; [2009] SGHC 184
Laybutt v Amoco Australia Ltd (1974) 132 CLR 57; [1974] HCA 49
Luckin v Hamyln (1869) 21 LT 366
Mabbett v Josef and Sons Contracting Pty Ltd [2006] NSWSC 1452
Mackay v Dick (1881) 6 AC 251
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Mannigel v Aitken (1985) 9 FCR 1
May v Mijatovic (2002) 26 WAR 95; [2002] WASC 151
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Murdoch v British-Israel World Federation (New Zealand) Inc [1942] NZLR 600
Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44
Pease v Courtney [1904] 2 Ch 503
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45
Qantas Airways Ltd v Cameron, Leonie (1996) FCR 246; [1996] FCA 349
R v Barclay (1882) 8 QBD 486
R v Gray; Ex parte Marsh (1981) 157 CLR 351; [1985] HCA 67
R v Oakes [1959] 2 QB 350
Re Bradbury, Needham v Reekie [1950] 2 All ER 1150; [1951] 1 TLR 130
Re Glyn, Public Trustee v Attorney General [1950] 66 TLR(Pt. 2) 510
Re Scowcroft [1898] 2 Ch 638
Re The Licensing Ordinance (1968) 13 FLR 143
Riley v Pickersgill [2004] UKPC 14; [2004] 4 LRC 471
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Samper v Hade (1889) 6 WN (NSW) 77
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21
State of New South Wales v Shaw (2015) 97 NSWLR 169; [2015] NSWCA 97
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; [1982] FCA 136
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Trust Co of Australia v Perpetual Trustees WA Ltd (1997) 42 NSWLR 237
Ward v Metlife Insurance Ltd [2012] WADC 166
Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Texts Cited: Enright & Merkin, Sutton on Insurance Law, 4th ed (2014)
PLG Brereton, “Acting for the Incapable - A Delicate Balance” (2012) 35 Australian Bar Review 244
Category: Principal judgment
Parties: Dennis Paltos (Plaintiff)
Bartier Perry Pty Ltd (ACN 124 690 053) (Defendant)
Representation:
Counsel:
C Freeman (Plaintiff)
J Emmett / H Grace (Defendant)
Solicitors:
Polczynski Robinson Lawyers (Plaintiff)
Yeldham Price O’Brien Lusk Lawyers (Defendant)

File Number(s): 2017/301216

Judgment

HIS HONOUR: Dennis Paltos sues Bartier Perry Pty Ltd (hereinafter “Bartier Perry” or “the defendant”) for professional negligence, alleging that the defendant had not applied due care and responsibility in advising Mr Paltos (the plaintiff) as to his rights under a partnership agreement and otherwise, following the plaintiff’s stroke. Mr Paltos was a solicitor in partnership with Peter Milevski in a practice styled “Paltos Milevski Family Lawyers” (hereinafter “the Partnership”).
Mr Paltos suffered two strokes and suffered disablement. Whether that disablement entitled Mr Paltos to certain rights within the Partnership and whether Bartier Perry should have advised him of such rights is at the heart of these proceedings.
The Partnership commenced business from on or about 1 July 2010. The shares in the partnership were held by Mr Paltos (as to 70%) and by Mr Milevski (as to 30%).
When the Partnership was established three documents were executed, being: the Heads of Agreement; the Deed of Agreement of Partnership Terms (also referred to as “the Partnership Terms”); and the Put and Call Option Agreement (together, referred to as “the Partnership Documents”). For present purposes, it should be noted, to be explained later in these reasons, each of the documents is poorly drafted.

Background

The short facts, by way of background, were that the Partnership operated from 1 July 2010 until the Partnership was dissolved on or about 21 April 2016, pursuant to orders of the Court. The background to that dissolution was, as stated, that, on 23 December 2015, the plaintiff suffered two strokes and was hospitalised.
On 15 February 2016, Mr Milevski wrote to Mr Paltos regarding the Partnership and, the next day, namely, on 16 February 2016, Bartier Perry commenced acting for the plaintiff.
It should be noted, at this point, that Bartier Perry became aware of the strokes when they were first engaged on 16 February 2016 and, indeed, before that date, and that the plaintiff suffered many symptoms as a consequence of those strokes.
On approximately 29 February 2016, there was a formal retainer from the plaintiff to Bartier Perry, which described the services to be provided by Bartier Perry as including “advising [the plaintiff] with regard to [his] Partnership in Paltos Milevski and in relation to the demands being made by [his] partner” (hereinafter, referred to as “the Retainer”).
Sometime prior to 18 April 2016, Bartier Perry advised Mr Paltos that Mr Milevski could terminate the Partnership and suggested that Mr Paltos try to sell 20% of the partnership to Mr Milevski or dissolve the partnership, himself.
On 18 April 2016, Mr Milevski commenced proceedings in the New South Wales Supreme Court against the plaintiff, seeking dissolution of the Partnership. On the same date, 18 April 2016, Bartier Perry ceased to act for the plaintiff.
On 21 April 2016, the Court made orders, by consent, granting the relief sought by Mr Milevski, including that the Partnership be dissolved and receivers be appointed.
On 17 August 2016, the plaintiff lodged a Notice of Intention to Engage in Legal Practice with the Law Society of New South Wales under the name Paltos Family Lawyers Pty Ltd and in December 2016, the plaintiff returned to practise as a solicitor.
There are a number of obvious issues in the proceedings. One of those issues is what were the terms of the Retainer of the defendant, which goes to the question of the duty of care and the contractual terms upon which the defendant was engaged, and what work or advice was required as a consequence thereof.
Over and above those issues, the plaintiff alleges that, for the purpose of one or other of the three Partnership Documents, executed at the time that the Partnership was established, he was totally and permanently disabled, or suffering “TPD” (to be explained later in these reasons), and was not advised of his rights under the Put and Call Option Agreement arising from that circumstance. Involved in that question is the issue, on which the parties are in dispute, as to whether, in accordance with those Partnership Documents, Mr Paltos was, in fact, totally and permanently disabled, as understood in the Partnership Documents, and, whether or not, in that situation, Bartier Perry owed the plaintiff a duty of care to advise him of his rights under the Put and Call Option Agreement, arising from total and permanent disability or his medical issues.
Lastly, if liability be shown, did the plaintiff suffer loss and damage as a result of the breach of the duty of care that has been alleged and, if so, what is the quantum of damage. Involved in that latter aspect is an issue associated with contributory negligence.
Further, the Court was informed that proceedings were to be heard, raising some of these issues, in the Equity Division, being proceedings between Mr Paltos and Mr Milevski. The Court was informed that those proceedings, including an application for an account, were due to be heard to finality in August 2019. They have not yet been finalised, although some of these issues are better determined as between the partners, binding on them, than against the plaintiff and defendant herein.
The plaintiff pleads causes of action in breach of the Retainer (contract); professional negligence (breach of duty of care); and compensation under the Australian Consumer Law [1] (hereinafter “the ACL”). The first two causes of action are governed by the Civil Liability Act 2002 (NSW) (hereinafter “the CL Act”).
1. Sch 2 of the Competition and Consumer Act 2010 (Cth).
The contraventions of the ACL that are said to give rise to the payment of compensation are contraventions of s 18 (misleading or deceptive conduct) and s 21 (unconscionable conduct in connection with goods or services, not confined to the unwritten law).
The claim for breach of the Retainer depends on the extent of the Retainer and its requirements and alleges that “the defendant did not exercise reasonable care, skill and diligence in advising and acting for the plaintiff in respect of the Retainer and its subject matter and thereby breached the Retainer.” The provisions of s 5O of the CL Act govern the determination of that which amounts to reasonable care.

Partnership Documents

As earlier stated there are three documents that have been described, in these reasons for judgment, as the Partnership Documents. On 11 February 2016, Christopher Hugh McCaffrey, at the relevant time a Consultant to the defendant and an employed solicitor, organised a conference. The conference took place on 15 February 2016 at the plaintiff’s residence. Those in attendance were the plaintiff, Mr McCaffrey and John Howell, an accountant from McBurney & Partners, who, it was said, could provide assistance to the plaintiff.
At the conference on 15 February 2016, Mr McCaffrey recalls that the plaintiff informed him of certain facts, in the following terms:

“I had a stroke two days before Christmas and I have not worked since.”
“I am having trouble with the junior partner of my practice and I think that he is trying to push me out.”
“I’ve been drawing more than my share from the partnership but the junior partner was aware of this and has not taken issue until now.”

On 16 February 2016, at 10:57 AM, Mr McCaffrey sent an email to Mr Howell referring to the conference with the plaintiff on the previous day and attached a copy of the “Partnership Agreement”. The attachment was a copy of a document provided to Mr McCaffrey by the plaintiff and was, in fact, the Put and Call Option Agreement.
Later on 16 February 2016, Mr McCaffrey enquired of the plaintiff as to whether there was any “more formal partnership agreement”. On 17 February 2016, the plaintiff sent an email to Mr McCaffrey, which forwarded an email from Adam Crowley and attached two additional partnership documents, being the Heads of Agreement and the Partnership Terms. As a consequence, on and from 17 February 2016, the defendant had in its possession the three documents which are said to describe the entirety of the partnership arrangements between the plaintiff and Mr Milevski.
There are two fundamental aspects to which the Court must refer, before dealing with the evidence and facts deriving therefrom in these proceedings.
Those issues are the provisions of the CL Act, the provisions of the ACL and the three Partnership Documents. Because the Partnership Documents must each be read as a whole in their commercial context and are central to the issues between the parties in these proceedings and the rights of the plaintiff upon which it is said the defendant ought to have advised, it is necessary to recite a greater extract of those documents than might otherwise have been appropriate or, at least, to summarise them. Nevertheless, I start with the legislative background.

The Civil Liability Act

The CL Act applies to any claim for damages for harm resulting from negligence, whether or not the claim rests in tort, contract or otherwise. [2] “Damages” is defined [3] to include, subject to some currently irrelevant exemptions, any form of monetary compensation.
2. Section 5A of the CL Act.
3. Section 3 of the CL Act.
Further, “negligence” is defined [4] as any failure to exercise reasonable care and skill; “harm” is defined [5] to include economic loss; while “non-economic loss” is defined [6] to mean, essentially, loss other than economic loss, including pain and suffering. The CL Act applies to a cause of action based on the failure to exercise reasonable care and skill under a contract, including a retainer for services of a solicitor.
4. Section 5 of the CL Act.
5. Ibid.
6. Section 3 of the CL Act.
It is necessary then to deal with the general principles included in Pt 1A of the CL Act. By operation of s 5B, a defendant is not negligent in failing to take precautions against a risk unless the risk was foreseeable (i.e. the risk was such that the person knew or ought to have known of it); was not insignificant; and, in the circumstances, was a step that a reasonable person in the position of the defendant would have taken. [7]
7. Section 5B(1) of the CL Act.
Further, in determining whether a reasonable person would have taken those steps, one assesses, amongst other things, the probability that the harm would occur if the steps were not taken; the likely seriousness of the harm if it were to occur; the burden of taking the steps; and the social utility of the activity that creates the risk of harm. [8]
8. Section 5B(2) of the CL Act.
The foregoing provisions of s 5B of the CL Act are recited, more as a matter of abundant caution and not because they are directly relevant to the issues between the parties. The principles applied under s 5B of the CL Act determine what is not negligent; not what is negligent.
Further, in these proceedings, the parties only indirectly referred to precautions that ought to have been taken. Rather, the claim rests upon the proposition that the terms of the Retainer required advice on the rights that the plaintiff possessed as a result of the Partnership Documents, including the rights that would flow from TPD or total and permanent disablement, which advice was not given.
The provisions of s 5D of the CL Act require that the alleged “negligence” (a term here used to include the allegation that there was a failure to exercise proper care and skill under the Retainer) caused the harm that is alleged. The plaintiff must prove that the lack of care and skill was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the defendant’s liability to extend to the harm so caused. At all times, the plaintiff bears the onus of proving, on the balance of probabilities, the facts that would satisfy the Court that the failure to provide appropriate care and skill in the advice, if there were such a failure, caused the harm. [9]
9. Section 5E of the CL Act.
Most relevantly, particular limitations are placed upon the standard of care for professionals. In this case, it is alleged that, as a solicitor, under the terms of the Retainer, the defendant did not act with due care and did not exercise professional skill. As a consequence, there are particular provisions that deal with liability arising from such an allegation.
In short, a professional does not incur liability in tort or contract for a failure to exercise reasonable care and skill in the provision of the defendant’s professional service, if the defendant establishes that it acted in a manner that was, at the time, widely accepted by peer professionals. [10] There is no evidence in these proceedings that a peer professional would not advise on the right to claim for TPD or total and permanent disability, if there were such a right, or whether such advice was required under the terms of the Retainer.
10. Section 5O of the CL Act.
As a consequence, it seems that the terms of s 5O of the CL Act have little or no work to do. It falls to the Court to determine whether, on the terms of the Retainer, there was a requirement to advise on the rights for TPD or total and permanent disablement, in the circumstances with which the defendant was dealing.

The Australian Consumer Law

As earlier stated, one of the causes of action pursued by the plaintiff in these proceedings rests upon the provisions of the ACL. It is necessary to recite the provisions upon which the plaintiff relies, which are ss 18 and 21 and which are in the following terms:

“18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

“21    Unconscionable conduct in connection with goods or services
(1)    A person must not, in trade or commerce, in connection with:
(a)    the supply or possible supply of goods or services to a person; or
(b)    the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.
…
(3)    For the purpose of determining whether a person has contravened subsection (1):
(a)    the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b)    the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4)    It is the intention of the Parliament that:
(a)    this section is not limited by the unwritten law relating to unconscionable conduct; and
(b)    this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
(c)    in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:
(i)    the terms of the contract; and
(ii)    the manner in which and the extent to which the contract is carried out;
and is not limited to consideration of the circumstances relating to formation of the contract.”

Essentially, the plaintiff’s cause of action under s 18 of the ACL relies on the advice given being misleading or deceptive, in that it did not advise adequately, or at all, on the available remedy if the plaintiff were suffering TPD or a total and permanent disablement under the Put and Call Option Agreement. Alternatively, it relies upon the omission of advice on that issue as being misleading or deceptive.
The reliance on s 21 of the ACL is unusual. Essentially, the plaintiff submits, that, knowing of the plaintiff’s disability or special disadvantage as a result of the plaintiff’s strokes, the defendant unconscionably failed to advise, as the plaintiff claims the defendant should have.
Ordinarily, unconscionability or unconscionable conduct is used in circumstances where there is a special disadvantage, known to the other contracting party, and the other contracting party takes advantage of that circumstance. It is not absolutely clear, how it can be said the defendant took advantage of the special disability suffered by the plaintiff.
Unconscionability occurs in circumstances where one party to a transaction is at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affecting her or his ability to protect her or his own interests and the other party unconscientiously takes advantage of the opportunity thus placed in her, his or its hands. [11]
11. Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 and 474; [1983] HCA 14.
The foregoing very brief and overarching definition of unconscionability is not intended to be a codification of that which may be able to be remedied by equity, or under the statute, but it is clear, on the authorities, that for there to be unconscionability there must be more than “unfairness”. Moreover, in this case, the plaintiff is seeking to use unconscionability not to undo an unconscientious advantage that had been taken by the defendant (or to obtain damages as a result thereof) but, rather, to impose upon the defendant a higher duty of care as a result of the statutory prescription. There may well have been, as a result of the injuries to the plaintiff, a duty of care to advise in a manner that took into account the “special disadvantage”, but, there is a real issue as to whether such a duty of care amounts to a cause of action for unconscionable conduct.
It is, of course, unnecessary for the party acting unconscionably to have caused the special disadvantage of which it takes unconscientious advantage. It is sufficient for the stronger party to have been aware of the special disadvantage and to have taken unfair advantage of it.
In order for conduct to be “unconscionable”, it is, at least, required that the person alleging unconscionability show, on the balance of probabilities, that the impugned conduct had shown “no regard for conscience”; and that the conduct was inconsistent with that which is right or reasonable, [12] which, as a consequence, imports a pejorative moral judgement. [13]
12. Qantas Airways Ltd v Cameron, Leonie (1996) FCR 246; [1996] FCA 349.
13. Hurley v McDonald’s Australia Ltd [1999] FCA 1728.
Ordinarily, unconscionability requires more than negligence. It requires moral fault or responsibility. However, the limits of unconscionability have not been codified or described. This is almost axiomatic as each set of facts will be unique, or at least particular.
Recently, the High Court commented on the purported extension of unconscionability arising from a number of statutory enactments, each of which is said not to be limited by the unwritten law relating to unconscionable conduct. In Australian Securities and Investments Commission v Kobelt,[14] the High Court considered the term “unconscionability” as part of the provisions of the Australian Securities and Investments Commission Act 2001 (Cth). The plurality judgment discussed the issue of unconscionability as did Gageler J in his reasons for judgment as part of the majority. At [88], Gageler J said:

“[88] The Commonwealth Parliament’s appropriation in s 12CB of the terminology of courts administering equity in the expression of the normative standard which the section prescribes serves to signify the gravity of the conduct necessary to be found by a court in order to be satisfied of a breach of that standard. ‘Unconscionability’, as has been long and well understood, ‘is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person’s legal rights’.” (Citations omitted.)
14. (2019) 93 ALJR 743; [2019] HCA 18.

The notion that unconscionability may be used, as the plaintiff seeks to use it here, is, on one view, axiomatically outside the purview of the provisions of s 21 of the ACL.
The foregoing does not detract from the claim for misleading or deceptive conduct. Nor does it affect the capacity of the plaintiff to claim under a cause of action in negligence or breach of contract.
I turn then to the provisions proscribing misleading or deceptive conduct, being the terms of s 18 of the ACL, recited above. The words of the section ought not be given a gloss, but applied in their ordinary and natural meaning and given their wide import.
The statutory provision, the progenitor of which is s 52 of the Trade Practices Act 1974 (Cth), is not based upon any previously applicable cause of action in common law or equity. It is not identical, or even similar, to the torts of deceit or passing off, although there are some aspects, particularly of the tort of deceit, which may be used helpfully in understanding particular conduct.
The provisions of s 18 of the ACL do not, of themselves, create liability. It prohibits conduct, in trade and commerce, and a contravention of that prohibition gives rise to damages, pursuant to other provisions of the statute.
The conduct that has been prescribed by s 18 of the ACL includes conduct that is “likely to mislead or deceive”. Hereinafter, to the extent that the Court refers to “misleading or deceptive”, it is intended that the term include conduct that is “likely to mislead or deceive”, unless obviously used otherwise, either expressly or by implication.
Conduct that may be misleading or deceptive includes all conduct and, in particular, includes the making of a representation or statement, which is misleading or deceptive (or, as earlier stated, likely to mislead or deceive).
In order for a plaintiff to succeed in a claim for damages arising from a contravention of s 18 of the ACL, the plaintiff is required to satisfy the court that the conduct, which is said to be misleading or deceptive, led to the making of a decision or led to consequential conduct by or on behalf of the plaintiff that caused the damage. In this sense, the ordinary principles of causation apply to a cause of action for contravention of s 18 of the ACL.
Because of the use of the term “likely to mislead or to deceive”, the latter comment should be qualified by making clear that all that is required is for the plaintiff to satisfy the court that there is or was a real and not remote chance or possibility of being misled or deceived. It is not necessary to show that the possibility is more probable than not.
The section requires an objective assessment of the conduct and is not concerned with the subjective belief induced by the conduct. Nevertheless, the effect needs to be one that will affect, more probably than not, the mind of the person who is purportedly misled or deceived. The court must determine whether that person has suffered damage as a consequence of misleading or deceptive conduct or was likely to be misled or deceived by that conduct.
Conversely, the court is not concerned with an intention by the defendant to mislead or to deceive. Except where the conduct involves the mere passing of information, without endorsement, and the passing of the information is disclosed at the time, the intention of the person who is said to have misled or deceived the plaintiff, in this case the defendant, is irrelevant. Regardless of intention, a contravention may have occurred. [15]
15. Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65.
It is also necessary to point out that it is the whole of the conduct of the defendant that must be examined in order to determine whether particular words or acts are, in the context of the whole conduct, misleading or deceptive. In that sense, even words that are technically accurate, or literally true, may be misleading or deceptive, if the statement conveys a meaning that is false.
The last mentioned aspect is a particularly important principle, when one is dealing with the current proceedings, because, in part at least, the claim of the plaintiff is based upon an omission to advise or a failure to advise properly. Further, where one is dealing with conduct that comes no higher than being likely to mislead or deceive, there may be real issues with damages ever being caused by such conduct, because it has not, in fact, misled or deceived.
However, the Court looks at the whole of the conduct said to be provided purportedly in satisfaction of duties established by the Retainer and determines whether that advice was misleading or deceptive, because, on the claim of the plaintiff, it omitted advice as to the rights of the plaintiff under the Put and Call Option Agreement.
In this context, assuming and accepting, for present purposes that the provision of advice from a solicitor is conduct in trade and commerce, the court asks itself the question whether the omission, or the totality of the advice, led to an objectively-determined misleading of the plaintiff to whom the advice was provided and to whom the representation was made.
Notwithstanding the foregoing analysis relating to the requirement to make an objective analysis, the fact, if it be the fact, that the recipient of this statement or the person to whom the representation was made, was, in truth, misled is relevant evidence in the proceedings. For obvious reasons, as earlier adumbrated, if the person was not misled or deceived, then there would be no cause of action in damages, because the representation would not have caused whatever damage may have occurred.
Even though that which is represented is an opinion, it may amount to misleading or deceptive conduct. This occurs, at least, where, even if genuinely held, the opinion lacked any or any adequate or rational foundation, or omitted to advise on a salient factor which qualifies the advice otherwise provided.
Apart from the exception in those two kinds of examples, a representation of an opinion, or the expression of an opinion, will not be actionable on the basis that it is incorrect. The expression of an opinion, genuinely held, will not be misleading or deceptive conduct, if it is a representation only that the opinion is genuinely held. However, ordinarily, an expression of opinion by an expert, as in this case, imports that the opinion has a rational basis and is an opinion open on all of the facts known to the professional.
Ultimately, in applying the provisions of s 18 of the ACL, the Court is required to examine whether the evidence establishes that the pleaded representations or conduct of the defendant that form the basis of the cause of action were misleading or deceptive. [16]
16. Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at [105]; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60.
In Parkdale Custom Built Furniture, Gibbs CJ, referring to the use of the term “misleading or deceptive”, said the following at [8]:

“[8] The words of s. 52 require the Court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words ‘mislead’ and ‘deceive’ share in common is ‘to lead into error’. If the word ‘deceptive’ in s. 52 stood alone, it would be a question whether it was used in a bad sense, with a connotation of craft or overreaching, but ‘misleading’ carries no such flavour, and the use of that word appears to render ‘deceptive’ redundant.” [17]
17. (1982) 149 CLR 191 at 198.

The contravening conduct or allegedly contravening conduct, said to be misleading or deceptive in contravention of s 18 of the ACL, must induce error and must involve the target of the misrepresentation or deception labouring under some erroneous assumption. [18]
18. Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203; [1982] FCA 136, cited with approval in the plurality judgment of Campbell v Backoffıce Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25.
As earlier stated, evidence that someone has been misled is not conclusive of the fact. Nevertheless, evidence that the plaintiff has been misled is admissible and, subject to the conduct being tested against ordinary or reasonable persons in the position of the plaintiff, may be persuasive. In that situation, it is necessary to enquire how and why the misconception, upon which the plaintiff has acted, has arisen. [19]
19. Taco Company of Australia Inc, supra, per Deane and Fitzgerald JJ.

The Partnership Documents

The foregoing discussion of principles deals with the legislative causes of action and, in relation to the CL Act, restrictions on or legislation governing the claim in tort and contract. However, at the heart of the proceedings is that which was contained in the Partnership Documents and the scope of the Retainer of the defendant. It is necessary to deal with the terms of the three documents that are said to give rise to the Partnership Agreement.
The first document with which the Court will deal is the document entitled “Heads of Agreement”. The Heads of Agreement, so-called, consists of seven paragraphs and was executed on 29 June 2010. It is in the following terms:

“Heads of Agreement
DATED: 29 June 2010
PARTIES
(a)    Dennis Paltos, Solicitor of 16/347 Victoria Place, Drummoyne NSW 2047
(b)    Peter Milevski, Solicitor of 146 Windsor Street, Paddington NSW 2021
THE AGREEMENT
Dennis Paltos offers to Peter Milevski the opportunity to exercise 3 (three) call options to acquire up to a 30% interest in a partnership to be formed on 1 July 2010 between them as follows:
1    On 1 July 2010 a ten percent (10%) interest for a consideration of $77,394 (or such other amount as is agreed) due and payable on that date if exercised to Dennis Paltos.
2   On 1 July 2010 a loan to Dennis Paltos of $154,786 (or 2/3 of such other amount as is agreed) carrying a return by way of a profit share from the Paltos & Co practice over and above a notional salary of $150,000 comprising 30% of the net profit after both his and Dennis Paltos’ notional salary which includes a return of 10% on (a) above.
3   On 1 July 2011 a further ten percent (10%) interest for a consideration of $77,394 (or 1/3 of such other amount as is agreed) due and payable on that date by reducing the loan owing by Dennis Paltos to Peter Milevski from $154,786 to $77,392 (or 1/3 of such other amount as is agreed) with the remainder subject to the same terms as (b) above.
4.   On 1 July 2012 a further ten percent (10%) interest for a consideration of $77,392 (or 1/3 of such other amount as is agreed) due and payable on that date by reducing the loan owing by Dennis Paltos to Peter Milevski from $77,392 (or 1/3 of such other amount as is agreed) to zero.
5.   Concurrent with the signing of this document the parties will enter into a Deed referred to as a ‘Put/Call Option Document’ as well as agreed terms on which the new partnership will be conducted.
6.    From 1 July 2010 and assuming steps (1) to (5) are carried out by the Parties to this document, Peter Milevski will be entitled to receive:
6.1.    A ‘notional salary’ of $150,000 drawn down in monthly amounts from which he is responsible for his superannuation and any taxes payable (deferred to April / May 2012 if a Tax Agent is used).
6.2.    An additional draw of up to 30% of the Practice Net Profit from time to time after agreement with Dennis Paltos based on the estimated net profit for the year to date net of the notional salaries of the Partners.

7    From 1 July 2010 and assuming steps (1) to (6) are carried out by the Parties to this document, Dennis Paltos will be entitled to receive:
7.1.    A ‘notional salary’ of $215,000 drawn down in monthly amounts from which he is responsible for his superannuation and any taxes payable.
7.2.    An additional draw of up to 70% of the Practice Net Profit from time to time after agreement with Peter Milevski based on the estimated net profit for the year to date net of the notional salaries of the partners.

DATED: 29 June 2010
EXECUTED AS A DEED: …”

The Court has set out the whole of the Heads of Agreement, because it, to some extent, sets the context for that which is relevant in the other two documents; and it is brief. Of greatest relevance in the Heads of Agreement is the description of the offer from the plaintiff to his business partner, Peter Milevski, of the opportunity to exercise three call options to acquire up to a 30% interest in the Partnership. Those call options were to be exercised on 1 July 2010, with a collateral loan; a further 10% on 1 July 2011; and, finally, the third 10% on 1 July 2012. They were exercised.
Further, by [5] of the Heads of Agreement, there is reference to the existence or creation of agreed terms on which the new Partnership will be conducted and, most importantly, the entry into a collateral “Deed” referred to as the “Put/Call Option Document”.
The second document to which the Court refers is a document entitled “Deed of Agreement of Partnership Terms” (also referred to herein as “the Partnership Terms”), also said to have been executed on 29 June 2010. The Partnership Terms consist of 10 paragraphs, the most relevant of which are [6] and [8]. Notwithstanding the most relevant aspects being the two nominated paragraphs, the Court, also in part due to the brevity of the document, will set out the entirety of the Partnership Terms, which is in the following terms:

“Deed of Agreement of Partnership Terms
DATED: 29 June 2010
PARTIES
(a)    Dennis Paltos, Solicitor of 16/347 Victoria Place, Drummoyne NSW 2047
(b)    Peter Milevski. Solicitor of 146 Windsor Street, Paddington NSW 2021
THE AGREEMENT
1.    Drawings, salaries, superannuation and other benefits to be paid to partners and staff to be agreed by unanimous vote.
2.    Cheque signatories to the bank account to be agreed.
3.    Borrowings in the name of the Partners for the practice are to be approved by both partners and personal guarantees are to be offered as security in proportion to the partners’ equity interests in the practice.
4.    Major acquisitions of fixed assets, lease Improvements or equipment whether owned or financed exceeding $10,000 per item or contract requires the unanimous agreement of the partners.
5.    Voting on the entry or exit of partners or prospective partners is to be by unanimous vote including the sale or merger of the practice.
6.    Peter Milevski has first right of offer in the event Dennis Paltos (or his heirs) wants to sell all or part of his partnership interest and Dennis Paltos has first right of offer in the event Peter Milevski (or his heirs) wants to sell all or part of his partnership interest. The fair market value of the partnership (including goodwill if any) shall be determined by a competent valuer and the pro-rata interest of the partner shall be determined without allowing for a discount for minority interest nor a premium for control.
7.    Partner meetings are to be held monthly shortly after the completion by the bookkeeper of the previous month’s results.
8.    Each Partner covenants that he will endeavour to faithfully account for all fees earned on behalf of the partnership and not change any partnership assets without the consent of the other partner. In the event a partner wants to exit the partnership he will agree to enter into a reasonable non-compete or restraint of trade agreement mutually acceptable to both parties.
9.    Related party transactions such as premises rent/leases, loans and motor vehicle costs are to be agreed by both partners.
10.    The Partners agree with each other that they will not, except as required by law at any time divulge to any person any trade secret, financial or business practice or other information concerning the affairs of the Practice, any of its dealings, transactions or affairs.
DATED: 29 June 2010
EXECUTED AS A DEED: …”

The obvious reference to the relevance of [6] of the Partnership Terms is the seeming first right of refusal or first right of offer in the circumstance that either one of the Partners desires to sell their interest in the Partnership. That paragraph also embodies, albeit in very general terms, the basis upon which the market value of the Partnership shall be ascertained.
Paragraph [8] refers to the duty by each Partner faithfully to account for all fees earned on behalf of the Partnership and not to encumber partnership assets without the consent of the other Partner. Further, as can be seen from [8] above, there is another reference to the possibility of a Partner seeking to exit the Partnership, in which case there will be “a reasonable non-compete or restraint of trade agreement mutually acceptable to both parties” upon which the exiting Partner will agree. There is no definition of what is “reasonable” and the content of the paragraph, on one view, seems to indicate an agreement to make a subsequent agreement, if and when the situation may arise.
Lastly, the Court turns to the Put and Call Option Agreement also executed on 29 June 2010. This is the most substantial agreement. There are a number of Recitals, including a recital that the Owner, defined in the document as Dennis Paltos, the same Mr Paltos as is the plaintiff in these proceedings, is prepared to sell to the Incoming Partner (defined as Peter Milevski) an interest in the practice previously operated solely by Mr Paltos, including the goodwill of the practice but excluding practice debts. Recital C summarises an effect of the Heads of Agreement and is in the following terms:

“C    By this Deed the Owner is prepared to sell to the Incoming Partner an interest in the Paltos & Co practice assets including the goodwill of the practice but excluding practice debts as specified in Annexure ‘A’ to this Deed. The interest to be sold by the Owner to the incoming Partner is to occur in three stages as follows:
a)    a 10% interest of the whole on 1 July 2010 for a consideration of $77,394 (or such other amount as is agreed);
b)    a further 10% interest of the whole on 1 July 2011 for a consideration of $77,393 (or such other amount as is agreed);
c)    a further 10% interest of the whole on 1 July 2012 for a consideration of $77,393 (or such other amount as is agreed).”

Recital D refers to the Owner and Incoming Partner granting “Call Options” to each other after 1 July 2010 and “Put Options” to effect the purchase and sale of the practice interests, subject to the terms and conditions set out in the Put and Call Option Agreement. Unlike the other two Partnership Documents, the Put and Call Option Agreement is described in the document itself as “the Deed”.
Recital D is in the following terms:

“D By this Deed the Owner and incoming Partner grant Call Options to each other after 1 July 2010 and are granted Put Options by each other in order to effect the purchase and sale of the practice interests subject to the terms and conditions set out in this Deed.”

In the body of the document, under the heading “General Terms Definitions and Interpretation”, there are a number of definitions. Some of those definitions are crucial in the determination of the issues between the parties. I do not recite each of the definitions, even though almost all of them are relevant. However, the most relevant definitions are set out below:

“‘Call Option’ means the option granted under clause 2.1 of this Deed by an Exiting Owner to an Ongoing Owner which may be exercised by an Ongoing Owner and by which, upon its exercise and subject to the terms of this Deed, the Exiting Owner is obliged to sell and the Ongoing Owner is obliged to purchase the Business Interests of the Exiting Owner.”
“‘Completion Date’ means the later of:
a)   The date that is 30 days after the date on which the respective Call Option or Put Option is exercised; or
b)   Such other date as the parties unanimously agree to be the date on which the transfer of Business Interests as contemplated by this Deed is completed.”
“‘Exiting Owner’ means the Owner or Incoming Partner who has exercised either a Put Option granted to him under the terms of this Deed or has been served with an Option Notice exercising a Call Option granted by him under this Deed.”
“‘Market Value’ means the amount calculated in accordance with Schedule C and where there is a dispute as to the application of this formula then the Market Value is the value of the Business interests as determined by an accountant appointed by the President of the Institute of Chartered Accountants for New South Wales and:
a)   they are to be instructed to value the Business Interests using the formula set out in Schedule C;
b)   no discount or uplift Is to be applied merely because:
i)   the number of Business Interests being transferred is a minority holding or is a majority holding or is neither a minority holding nor a majority holding; or
ii)   the Business Interests being transferred are not being transferred with all of the other Business Interests; and

c)   their decision is that of an expert not an arbitrator and their valuation is binding on the parties.”
“‘Ongoing Owner’ means an Owner or Incoming Partner who has exercised a Call Option granted to them by an Exiting Owner under this Deed or has been served with an Option Notice exercising a Put Option granted by them under this Deed and includes a person who has had rights to acquire Business Interests from an Exiting Owner as contemplated by this Deed assigned to them in accordance with clause 2.5.”
“‘Option Exercise Period’ means the 30th day after the following days:
a)   in the event of the death of an Owner or Incoming Partner – the date of death;
b)   in the event of the TPD of an Owner or Incoming Partner – the date that the TPD event (as defined in the Insurance Policy) occurred or, if there is no such Insurance Policy in place, the date on which the Principal has not been able to carry out their usual working activities for a period of six consecutive months.”
“‘Option Notice’ means written notice of an Owner’s or incoming Partner’s exercise of the Call Option or Put Option granted to them under this Deed being in the form or in similar form to that set out in Schedule B.”
“‘Purchase Price’ means in relation to Business Interests that are transferred in accordance with this Deed, the amount calculated in accordance with the following formula:
[A% x B] – C
Where
A = the percentage that the Business Interests held by the Exiting Owner bears to the total of all business interests of that class;
B = the Market Value of all Business Interests;
C = the amount of the sum insured received by the Related Insurance Owner of the Insurance Policy (if any) in respect of the Owner or Incoming Partner who suffered the Trigger Event,
provided that, if the application of this formula equals zero or a negative number then the Purchase Price is $1.00.”
“‘Put Option’ means the option granted under clause 2.2 of this Deed by an Ongoing Owner to an Exiting Owner which may be exercised by an Exiting Owner and by which, upon its exercise and subject to the terms of this Deed, the Ongoing Owner is obliged to purchase and the Exiting Owner is obliged to sell the Business Interests of the Exiting Owner.”
“‘TPD’ means total and permanent disablement of an Owner or Incoming Partner and:
a)   If there is an Insurance Policy In place in respect of an Owner or Incoming Partner, TPD has the meaning given in that Insurance Policy;
b)   If there is no Insurance Policy in place in respect of an Owner or Incoming Partner, TPD means the existence of circumstances where, because of injury or illness, the Owner or Incoming Partner has not been able to carry out their usual working activities in their usual occupation for a period of six consecutive months.” (Emphasis added in this definition.)

Clause 2 of the Put and Call Option Agreement deals with the grant of options and clause 3 with the exercise of options.
Essentially, clause 2 deals with the grant of Call Options and the grant of Put Options and the definition of proportionate interests. Each of the Put and Call Options are granted subject to the occurrence of the Trigger Event, which is also a defined term and is defined as meaning “the death or total and permanent disablement of an Owner or Incoming Partner”.
One of the issues in these proceedings is whether the term “total and permanent disablement” is synonymous with the term “TPD” and, whether, the term “total and permanent disablement” includes the definition in paragraph (b) of the definition of TPD. The term “total and permanent disablement” is not expressly defined in the Deed.
Clause 3 of the Put and Call Option Agreement deals with the exercise of options and, most relevantly, requires the options, granted under clause 2 of the Deed, to be the subject of an Option Notice on the other Owner and Incoming Partner within the Option Exercise Period, which, from the above definitions, is, relevantly, “the 30th day after the date that the TPD event occurred”, or, in the case of the non-existence of an Insurance Policy (which is the circumstance in these proceedings), “the date on which the principal has not been able to carry out their usual working activities for a period of six consecutive months”.
Assuming, for present purposes, that a Put Option or Call Option is exercised within the Option Exercise Period, the Exiting Owner is bound to sell and the Ongoing Owner is bound to purchase the Exiting Owner’s Business Interests in accordance with the terms provided in clause 5 of the Deed, which includes the calculation to which reference is made in the definition of Purchase Price, above.
Most relevantly, by clause 5.1(c), the Put and Call Option Agreement provides that the “completion of the sale and purchase of the Business Interest must take place on or before the Completion Date at such place as the Owner who first exercises the Call Option or Put Option specifies in the Option Notice”. Clause 5.1(e) provides that “an Owner or Incoming Partner who has suffered TPD is prohibited from holding any office or any other management role in any Business Entity and must resign from holding any such offices or roles within seven (7) days of the Trigger Event being determined as having occurred”.
Clause 6 deals with mutual guarantees and indemnities and, while relevant in general, does not directly impact upon the issues between the parties. Similarly, clause 7 of the Put and Call Option Agreement deals with termination and provides that the “Deed can be terminated only by the unanimous written consent of all parties”.
There is a provision [20] that the governing law will be “the law of the Jurisdiction and the Commonwealth of Australia”, the “Jurisdiction” having been defined as New South Wales. There are also provisions [21] dealing with the proposition that the Deed is the entire Agreement. Other clauses [22] deal with the severability of any invalid, void or unenforceable provision and the binding effect of the other or remaining provisions.
20. Clause 8.1 of the Put and Call Option Agreement.
21. Clause 8.2 of the Put and Call Option Agreement.
22. Clauses 8.3, 8.4 of the Put and Call Option Agreement.
The remaining provisions of the Put and Call Option Agreement deal with amendment; assignment; how notices can be delivered; the execution of the document in counterparts; and the like. [23] There is also a provision for dispute resolution, [24] which, in relation to the Partnership dispute between the plaintiff herein and Mr Milevski, does not seem to have operated or been effective.
23. Clauses 8.5 – 8.7, 8.10 of the Put and Call Option Agreement.
24. Clause 9 of the Put and Call Option Agreement.
Lastly, there is a provision [25] that deals with any inconsistency between a provision of the Deed, clearly a reference to the Put and Call Option Agreement, and any other “constituent document of the Business Entity” (including, somewhat unusually, the company constitution), which, if there be such an inconsistency, then the provisions of the Deed will prevail. There is a Schedule B to the Put and Call Option Agreement, which deals with the form of the Option Notice and a Schedule C which deals with the calculation of market value. For present purposes, it is unnecessary to recite or summarise any of those schedules.
25. Clause 8.13 of the Put and Call Option Agreement.

Principles on the construction of the agreements

It is now trite that the construction of a contract is an objective process in which the Court seeks to construe the terms of the contract to determine the intention of the parties. The intention of the parties is determined from the written terms of their bargain and not by any expression of subjective opinion. [26] The objective approach, to which the Court referred above, has, on a number of occasions, been re-affirmed by the High Court, [27] and the Court has observed:

“[35] … this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption ‘that the parties … intended to produce a commercial result’. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.” (References omitted.)
26. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 351; [1982] HCA 24 per Mason J (with whom Stephen and Wilson JJ agreed); Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41 at 62; [1984] HCA 64; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179; [2004] HCA 52; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37.
27. Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, per French CJ, Hayne, Crennan and Kiefel JJ.

Further, the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [28] succinctly reaffirmed the process:

“[40] This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.” (References omitted.)
28. (2004) 219 CLR 165; [2004] HCA 52, per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

The Court, as presently constituted, will apply the objective approach to ascertaining the intention of the parties, but it must also bear in mind the commercial purpose of the Agreement and seek to achieve that purpose. Before analysing the effect of the Agreement on the issues between the parties, it is necessary to deal with the evidence before the Court.

Evidence

The parties filed a Joint Memorandum of Agreed Facts and Issues in Dispute (“Agreed Facts”), which is extracted below. Further evidence was adduced by Affidavit with cross-examination available to the parties.

“Joint Memorandum of Agreed Facts and Issues in Dispute
1.    Agreed Facts
1.1.    The plaintiff, Dennis Paltos (Dennis) was admitted as a solicitor of the Supreme Court of New South Wales on 11 May 1979 and specialised in family law.
1.2.    Dennis and Peter Milevski (Peter) conducted a family law practice (the Partnership) from 1 July 2010 under various names and styles.
1.3.    The defendant law firm, Bartier Perry Pty Limited (Bartier Perry), was engaged by Dennis on or about 16 February 2016 to act on Dennis’ behalf in relation to a dispute with Peter. Christopher Hugh McCaffrey (the Solicitor) was a solicitor employed by Bartier Perry having over 40 years’ experience in commercial law and specialising in commercial agreements.
1.4.    When the Partnership was established, Dennis and Peter entered into three documents all dated 29 June 2010 (the Partnership Documents) as follows:
1.4.1.       Heads of Agreement;

1.4.2. Deed of Partnership; and
1.4.3. Put and Call Option (PCO).

1.5.   From 1 July 2010 Dennis held a 70% interest in the Partnership and Peter held a 30% interest in the Partnership.
1.6.   The PCO granted each partner (Dennis and Peter) an option (the Option) to require the other partner to purchase the business of the Partnership if, relevantly, conditions (such as total and permanent disablement of the partner exercising the option) were met. The Option could only be exercised under the PCO within the ‘Option Exercise Period’.
1.7.    On 23 December 2015, Dennis suffered a left middle cerebral artery stroke and a right posterior cerebral artery stroke (the Strokes) for which he was hospitalised. Dennis suffered executive impairments as a result of the Strokes, including memory problems and perseveration.
1.8.    On 15 February 2016 Peter wrote to Dennis regarding the Partnership.
1.9.    On or about 16 February 2016, Bartier Perry (by the Solicitor) commenced acting for Dennis. A formal written retainer (the Retainer) was entered into by Dennis and Bartier Perry on or about 29 February 2016. The Retainer relevantly stated that the following work was to be undertaken:
‘advising you with regard to your partnership in Paltos Milevksi and in relation to the demands being made by your partner [Peter]’

1.10.    It was an implied term of the Retainer that Bartier Perry would exercise reasonable care and skill in performing the Retainer. Further, Bartier Perry owed Dennis a duty of care to use reasonable care, skill and diligence in the provision of the legal services provided by Bartier Perry to Dennis pursuant to the Retainer.
1.11.    From at least 16 February 2016 Bartier Perry (by the Solicitor) was aware of the Strokes and that Dennis suffered a number of symptoms arising from the Strokes.
1.12.    Bartier Perry was provided with a letter from Dr George Lianos dated 24 February 2016.
1.13.    Dennis provided the PCO to Bartier Perry prior to 16 February 2016 and the rest of the Partnership Documents to Bartier Perry on 17 February 2016.
1.14.    Bartier Perry advised Dennis, inter alia, that Peter could seek to terminate the Partnership and that Dennis should adopt a strategy to try and sell 20% of the Partnership from his 70% share to Peter or otherwise dissolve the Partnership at 30 June 2018 (Advice).
1.15.    Bartier Perry was aware from at least 14 March 2016 that Peter had registered:
1.15.1.    Peev Holdings Pty Limited ACN 611 099 980 (Peev) with Peter its sole director, secretary and member; and
1.15.2.    Milevski Family Lawyers Pty Limited ACN 611 104 753 with Milevski its sole director and secretary and Peev its sole member.

1.16.    On 18 April 2016 Peter commenced Supreme Court proceedings against Dennis seeking the dissolution of the Partnership. On 18 April 2016 ex parte orders were made that the summons be returnable on 21 April 2016.
1.17.    On 18 April 2016 Bartier Perry ceased to act for Dennis.
1.18.    By email sent at 6.02pm on 20 April 2016 Dennis directly engaged Michael Lowenstein of counsel to appear on Dennis’ behalf at the return of Peter’s summons.
1.19.    At the hearing on 21 April 2016 orders were made granting the relief sought by Peter including an order relevantly, that the Partnership be dissolved and receivers and managers be appointed.
1.20.    Bartier Perry did not provide Dennis with the advice referred to at [29] of the further amended statement of claim (Statement of Claim) or undertake or attempt to undertake the calculation referred to at [30] of the Statement of Claim.
1.21.    Dennis did not exercise the Option.
1.22.    On or about 17 August 2016, Dennis lodged a Notice of Intention to Engage in Legal Practice form with the Law Society of New South Wales under the name Paltos Family Lawyers Pty Limited.
1.23.    By at least December 2016, Dennis had returned to practice as a solicitor.

2.   Issues in Dispute
2.1.    What were the terms of the Retainer?
2.2.    [Not agreed by plaintiff where underlined]: What was the meaning and effect of the Option, specifically:
2.2.1.    What are the requirements for being ‘totally and permanently disabled’?
2.2.2    Was the Option able to be exercised after the Partnership had been wound up?
2.2.3.    Was there an implied term of the kind alleged by the plaintiff?
2.2.4    Was the option or the implied term engaged if the Partnership was wound up, or about to be wound up, for reasons that were unrelated to disablement, specifically a breakdown in the partners’ relationship and/or misconduct or alleged misconduct by Dennis? [Plaintiff contends that it is not pleaded and not adequate particulars of misconduct have been provided].
2.2.5.    If the alleged implied term exists, was engaged and was breached by Peter, does that breach sound in damages (given that, if so, Dennis still has that cause of action against Peter)? [Plaintiff contends that it is not pleaded].

2.3    Was Dennis ‘totally and permanently disabled’ for the purposes of the Option?
2.4.    Would Dennis have been entitled to exercise the Option during the Option Exercise Period as defined in the PCO?
2.5.    Did Dennis return to work in his usual occupation at any time prior to the:
2.5.1.    Expiry of the Option Exercise Period? or
2.5.2.    Termination of the Retainer?

2.6.   Did the Option contain an implied term as pleaded at 11A of the Statement of Claim?
2.7.    Did Bartier Perry have a duty of care, in contract or in tort (Duties), to advise Dennis of the Option including Dennis’ right to exercise the Option?
2.8.    Did Bartier Perry breach the Duties owed to Dennis by:
2.8.1.    Providing the Advice to Dennis; or
2.8.2.    Not providing to Dennis the advice set out at [29] of the Statement of Claim or undertaking or attempting to undertake the calculation referred to at [30] of the Statement of Claim?

2.9.    Did Dennis suffer loss and damage as a result of the breach of the Duties by Bartier Perry? If so, what is the quantum of the loss and damage?
2.10.    If the existence of the Option had been brought to the Court’s attention on 21 April 2016, would this have prevented the dissolution of the Partnership and appointment of receivers?
2.11.    Is Bartier Perry entitled to rely on (or has Bartier Perry established) the pleaded matters in answer to the whole of the Statement of Claim, as to which Bartier Perry asserts that:
2.11.1. Section 5O of the Civil Liability Act 2002 (NSW) applies;
2.11.2.    Alternatively, Dennis has failed to demonstrate that had he received the advice at [29] of the Statement of Claim:
(a)    he would have instructed Bartier Perry to exercise the Option on the basis that he was totally and permanently disabled;
(b)    Bartier Perry would have been able to follow such instructions having regard to instructions from Dennis that he wanted to return to work;
(c)    he would have been in a better position having regard to all the circumstances including, amongst other things, the plaintiff’s express instructions which accepted he misconducted himself;
such that he suffered loss and damage by reason of the alleged breaches by Bartier Perry.
2.11.3.    Alternatively, Dennis caused or contributed to his own loss and damage because he failed to:
(a)    Inform Bartier Perry of his belief and intention not to return to work;
(b)    Take reasonable steps to protect his own interests;
(c)    Use his skills as a solicitor to read and understand the PCO or seek advice in relation to the Option.

2.11.4.    Dennis’ claim is an apportionable claim pursuant to Part IV of the Civil Liability Act 2002 (NSW) and, if so should be:
(a)    apportioned between:
(i)    Dennis on the basis he contributed to his own loss;
(ii)    Michael Lowenstein of counsel who appeared in Court on behalf of Dennis on 21 April 2016;
(iii)    Other unspecified parties from whom Dennis is alleged to have sought and obtained legal advice; and
(b) limited, having regard to Bartier Perry’s responsibility in comparison to any other concurrent wrongdoer pursuant to section 35 of the Civil Liability Act 2002 (NSW).

2.11.5.    Bartier Perry is immune from suit on the grounds that:
(a)    The conduct alleged amounts to conduct of a case in Court by Bartier Perry and work done out of Court affecting the conduct of a case in Court;
(b)    There was an intimate connection between the conduct alleged and the conduct of a case in Court; and/or
(c)    There was a functional connection between the conduct alleged and the determination of the case by the Court.

2.12.    Is there an implied representation in the provision to Dennis of the Advice, that there was no information known to Bartier Perry which a reasonable client in Dennis’ position would expect to be disclosed but which was not disclosed?
2.13.    If so, is such implied representation misleading or deceptive, likely to mislead or deceive and / or made in contravention of section 21 of the Australian Consumer Law (ACL)?
2.14.    Did Dennis suffer loss or damage as a consequence of the contravention of the ACL, and if so, in what amount?”

Apart from the Agreed Facts, as earlier stated, Affidavits were read, in respect of some of which there was cross-examination. Before dealing with the evidence of the plaintiff, it is appropriate to summarise the medical evidence and psychological evidence relating to the effect of the strokes and the plaintiff’s consequential capacity to work.
As is agreed and recited above, the plaintiff suffered two strokes on or about 23 December 2015. [29] For present purposes, that statement is sufficient as to the physical cause of any effect on the plaintiff.
29. Agreed Facts at [1.7].
By Report dated 9 April 2018, Dr George Lianos, Consultant Psychiatrist and Psychotherapist, expressed his views on the effect of the strokes on the plaintiff.
The Report not only expresses conclusions but also relates facts as Dr Lianos observed them. First, Dr Lianos expresses the surprise that he experienced on hearing the plaintiff’s voice over the phone on 10 February 2016. He recalls that the plaintiff’s voice was “weak, slow and barely audible”. The plaintiff was “unable to articulate words clearly, stuttering and unable to find words. His speech felt difficult, laboured and he quickly became exhausted”.
As a consequence of Dr Lianos’ view that Mr Paltos, the plaintiff, was not in a position to be able to visit Dr Lianos in his rooms, Dr Lianos attended on him at the plaintiff’s residence. He described his physical appearance as an “emaciated, stooped, shuffling man who was dressed in pyjamas and appeared to barely have the strength to walk back to the lounge room of his apartment where we sat and spoke for about an hour. He appeared to be a shadow of his former self. He was clearly extremely unwell.”
Dr Lianos observed that the plaintiff’s “speech was soft, slow, laboured and exhausting. He was apologetic as he stumbled to articulate his chosen words and embarrassed and perplexed as to why he was unable to find the words that he was looking for.” Dr Lianos described the plaintiff as anxious and frustrated by the limitations which were patent and that anxiety and frustration precipitated a further deterioration in the quality of his speech. This, in turn, “made him more anxious”.
According to Dr Lianos, the plaintiff was not able to maintain the logical flow of the conversation, forgetting what he was saying and asking Dr Lianos to remind him where he was up to. Dr Lianos administered a formal standard memory test sentence. The plaintiff was unable to complete the test and said he was “too exhausted to try”.
Apparently, the plaintiff appeared concerned that the stroke would be the ruin of him and he was concerned as to what would happen to his practice, his business partner and his financial future as, in the explanation given to Dr Lianos, the plaintiff did not have income protection insurance.
After suggesting a slower approach in order to ensure a better psychological outcome, which focused on rehabilitation, Dr Lianos noted, in his Report, that the plaintiff referred on a number of occasions to “wanting to get better and to return to work”, to which Dr Lianos suggested, in that session, that such an eventuality was not going to happen, in the immediate future, and that such an eventuality was not the “primary goal given the cognitive, emotional and behavioural limitations that [the plaintiff’s] stroke had caused and that it would take some time to find out how much of his brain function would return”.
During the course of the visit, the plaintiff asked Dr Lianos to explain from what deficits the plaintiff was suffering to which Dr Lianos replied “problems with the (sic) speech, attention, concentration and memory” and suggested that they “focus on his neurological rehabilitation and worry about the other stuff later on”. Anti-depressants and anti-anxiety medication were prescribed, in part, to allow the plaintiff to sleep well and as a preventative for depression.
The following passage in the Report is, in my view, important and I extract it:

“I remember thinking to myself that ‘here we go again … Dennis is focusing on the positive stuff of returning to work and solving the problems and he’s got no idea of what is going on.’ He was behaving as if this was a minor hiccup and he would be returning to work pretty quickly! I also thought that it was going to be challenging to help him deal with the reality of his limitations.
My previous experiences with Mr Paltos had allowed me to fully grasp the tenacity of his character - the determination that he always expressed in digging himself out of a hole. He was always doggedly determined to the point of defiance.
I warned him on many subsequent occasions that we had to be careful not to presume the certainty of an outcome before we had developed an adequate understanding of the nature and extent of each problem that confronted him, so that we could help him in the best possible way. Although he appeared to understand what I was saying he always reverted to a more ‘optimistic’ outlook that things were more likely to happen sooner rather than later.
I allowed him this latitude in order to maintain his hopeful outlook. My clinical experience has been that if people lose hope in the circumstances that Mr Paltos found himself in, recoveries were always more emotionally painful, complicated and prolonged.
As the corroborating evidence of his three neuro-psychometric assessments emerged it became easier to help him deal with his obvious limitations.
His response to the first assessment was to presume that it was wrong. As more of his cognitive functions returned and the evidence of his dysfunctions mounted he slowly accepted that he would not be able to return to solo private practice. He became aware that he could not rely on his own memory in the way that he had previously done so and that he could not manage to run an office by himself. He realised that he would require external assistance to prompt him on those occasions when his memory failed him.”

Dr Lianos referred to the extent of the plaintiff’s deficits and that they had been well documented in the medical Report of Dr Laurie Miller of 13 April 2016; the Report of Dr Nora Breen of 12 August 2016; and the Medical Report of Dr Nora Breen of 25 January 2017.
The whole of the Report of Dr Lianos is informative and accords with the observations the Court has made of Mr Paltos in the witness box. It is appropriate that I recite the conclusions. Taking into account the activities that were said to have been those of the plaintiff’s usual occupation as a family lawyer, Dr Lianos expressed the opinion that he was not, for at least six consecutive months commencing 23 December 2015, able to carry out his usual working activities in his usual occupation. Dr Lianos then details his own observations and recites the reported observations and conclusions of Dr Miller, in the Report, to which earlier reference has been made, and which corroborated his view of the plaintiff’s capacity.
Further, in answer to the question as to when, if at all, the plaintiff was able to carry out his usual working activities in his usual occupation as a family lawyer, Dr Lianos expressed the view that the plaintiff, at least as at 9 April 2018, “has been and is currently unable ‘to carry out his usual working activities in his usual occupation as a family lawyer (as identified in 5.1 to 5.9 of the above Annexure A)’.”
Dr Lianos then recites his own observations which include, at [5] on p 5 of the Report, that the plaintiff “appears to be significantly better than he was”, but “he still remains unaware of the extent of his deficits. In the example given above the fact that he became aware of something after the event is not the same as being able to access what he requires in a timely manner. This may impose significant limitations in his communication with others and advocacy in court.” Dr Lianos, once more, recites Dr Miller’s observations and conclusions supporting that opinion.
Those observations included the fact that even the assessment of Dr Miller was kept to a minimum because Dr Miller considered that the plaintiff was having “significant difficulty and was becoming more distressed”. Reference was also made by Dr Lianos to the Report of Dr Breen of 12 August 2016 and the Medical Report of Dr Breen of 25 January 2017.
Dr Lianos gave an answer to a question as to symptoms the plaintiff presented with, which would alert a layperson that Mr Paltos was not in a position to carry out his usual working activities in his usual occupation, but the Court is not prepared to accept that Dr Lianos has any special knowledge of what laypeople would notice. Nevertheless, the Court accepts the expression of opinion that the plaintiff “was not his normal self, … was seriously ill, … had lost a significant amount of weight, … appeared emaciated, … had difficulty walking, … spoke softly and in a laboured manner, … had difficulty finding his words, … repeated himself, … [and] he was insistent on returning to work”.
The Court also accepts the expressed view of Dr Lianos that “anyone that had known Mr Paltos before his cerebral vascular incident would have easily recognised that he was a shadow of his former self, mouthing words of great intent that correlated poorly with his physical and cognitive status”.
Dr Lianos noted the improvement in the plaintiff between 18 April 2016 and December 2016, but noted that he remained as ill as described in the Reports of Dr Breen of 12 August 2016 and 25 January 2017. The plaintiff apparently presented better in terms of his physical appearance, but retained significant cognitive impairments some of which, according to Dr Lianos, may not have been easily detected by a layperson.
The plaintiff’s physical improvements were greater than for his cognitive functioning. Dr Lianos also described the plaintiff as a person who “still had significant difficulties finding and articulating his words and that this was causing him severe irritation and frustration”.
Further, the Report of Dr Lianos noted that the “longer [persons] interacted with [the plaintiff] the more likely they were to observe that he would ask questions like ‘where was I?’ when he lost track of his own thinking.” Dr Lianos expressed the view that Mr Paltos was observably incapacitated, at least to some extent. The Report notes:

“It is my opinion that anyone who met Mr Paltos for the very first time when seeking family law advice would immediately register that something was wrong and feel concerned about his capacities. They may have noticed that he was unusually irritated and frustrated. Many people would have been ‘put off’ by his presentation.
…
There has been very little change in Mr Paltos’ presentation since December 16.”

Dr Lianos compiled a supplementary Report dated 13 May 2019, in which he expressed the opinion that in the 12 months since his first Report, based on the history available to him and the observations he has made of the plaintiff, the plaintiff’s condition has not changed or has changed very little. He also expressed the opinion that “the permanency of his deficits are (sic) now evident”.

However, the Option Notice was not served and, it would seem, that right has now been lost. Under the Put & Call Option Agreement, because the Option Notice was not served within the Option Exercise Period, the right has lapsed. [111]
111. Clause 3.2 of the Put and Call Option Agreement.
Given the predominant concern of the plaintiff as to money and the desire, as from 13 April 2016, to have Mr Milevski purchase the entirety of the plaintiff’s interest in the Partnership, the Court accepts as accurate the evidence of the plaintiff that, if he had been advised of the ability to take advantage of the Put Option, he would have done so. [112]
112. Affidavit, Dennis Paltos, sworn 13 April 2018, at [73], [74] and [76].
As a consequence, the negligence of the defendant has caused the plaintiff loss and damage. That damage is the amount calculated by reference to the Put and Call Option Agreement calculation and, in particular, Schedule C thereto. That amount was calculated by Mr Duggan, chartered accountant, who was the only expert witness to give evidence of the amount which the calculation would derive.
The foregoing conclusion on liability does not depend on which of the two available definitions of Trigger Event are utilised, but does depend on the meaning of “total and permanent disablement” where used in that definition. The term “total and permanent disablement” is not itself defined.
If, contrary to the construction I have previously explained, the definition of TPD, by using the expression “means total and permanent disablement”, is intended also to define or determine the circumstances when “total and permanent disablement” occurs, then slightly different consequences arise. It is appropriate, given the position of the parties, to address those different consequences.
If the intention of the parties to the Put and Call Option Agreement, derived objectively, was that “TPD” and “total and permanent disablement” were to be used interchangeably (hitherto referred to as my preferred view), then the Trigger Event would occur, relevantly, at the conclusion of the six-month period during which the Partner was unable “to carry out [his] usual working activities in [his] occupation”. If that were so, then the “Option Exercise Period” would commence at the conclusion of the 6 month period and end on the “the 30th day” thereafter. This is the main reason that I prefer this construction. It avoids all of the inconsistencies that otherwise arise and would prevent the occurrence of retrospective operation of the Trigger Event or clause 5.1(e) of the Deed.
As stated, such a construction would overcome all of the inconsistencies associated with a construction based on the submission of the defendant and also the few inconsistencies or difficulties associated with the earlier explained construction. The only difficulty is that it would be utilising the definition of TPD to define the term “total and permanent disablement” in a manner that was unorthodox.
The consequences, in terms of the advice, or omission of advice, would be different, but not in a manner that avoided negligent conduct or causation. As already stated, the advice, provided by the defendant to the plaintiff, concerning the operation of the Put and Call Option Agreement, was cursory.
The evidence of correspondence and file notes discloses the accuracy of the testimony of the plaintiff that the defendant did not relevantly or adequately advise the plaintiff:

“72.   At no time did Chris, David or anyone else from Bartier Perry advise me:
a.    About the Put and Call Option, specifically the effect of clause 5.1 and 5.2 of the Put and Call Option.
b.    That if I exercised my rights under clause 5.1 of the Put and Call Option Peter would be obliged to purchase my 70% share of the Partnership at the price determined using the formula in clause 5.1 of the Put and Call Option (the Formula).
c.    That the effect of clause 5.2 of the Put and Call Option was that if I exercised it Peter would be obliged as soon as reasonably practicable after the Completion Date (as defined in the Put and Call Option) to do all things and sign all documents necessary to release any guarantees or persona! covenants given to me regarding debts of the Partnership.
d.    That I had a legal basis to stop Peter from terminating or dissolving the Partnership.
e.    That I could apply for an injunction seeking orders restraining Peter from:
i.    dissolving or trying to dissolve the Partnership; and
ii.    appointing a receiver.
f.    That I should take steps to preserve my rights under clauses 5.1 and 5.2 of the Put and Call Option.
g.    Of any strategy using the Put and Call Option to stop Peter from dissolving or trying to dissolve the Partnership or appointing a receiver.
h.    That the Court should be provided \with a copy of the Put and Call Option.
i.    That the Court should be informed that clauses 5.1 and 5.2 of the Put and Call Option should be taken into account in considering whether the Partnership be dissolved or a receiver appointed to the Partnership.
j.    That the monies payable by Peter under the Formula should be calculated immediately either by Bartier Perry or an accountant.
k.    That Bartier Perry had calculated or sought to calculate the monies payable by Peter under the Formula.
l.    That the Put and Call Option would lapse on the 30th day after the date on which I had not been able to carry out my usual working activities for a period of six consecutive months,
m.    Of the fact that 1 could, or should, exercise my rights under the Put and Call Option.”

I continue to accept that if the plaintiff were to have been aware of those matters, which he was not, he would have exercised the Put Option by serving, at the appropriate time, an Option Notice. The appropriate time, in this alternative preferred construction, was between 23 June 2016 and 22 July 2016 (or, perhaps as a result of the weekend 25 July 2016).
First, it is necessary to note that the cursory advice that the Put and Call Option Agreement “did not apply yet [or at that time]” would not, on this alternative construction, be wrong (except if one uses “apply” in a technical sense). Technically, the Agreement “applied”, the Option had been granted, but its exercise had not been triggered. Nothing turns on that aspect.
Further, the Option Notice could not have been served, on this alternative preferred construction, until 23 June 2016, a time after the Retainer had been terminated [113] and after the Partnership had been dissolved. [114]
113. 18 April 2016.
114. 21 April 2016.
In those circumstances, taking the conduct overall, the advice that the Put and Call Option Agreement “did not apply yet or at this stage” was accurate until 23 June 2016, again assuming “apply” referred to the capacity to exercise the Option. However, the failure to provide advice on the construction of the Put and Call Option Agreement and the manner and timing of its exercise was negligent and in breach of the Retainer.
Further, an issue arises as to how the duties to which the High Court referred [115] operate in those circumstances. The law, as earlier stated by reference to Shepherd v Felt & Textiles, cited with approval in Peters (WA) v Petersville, implies a negative covenant not to hinder or prevent the fulfilment of the purposes of the express promises in the Agreement.
115. Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45; Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21.
I have already expressed the view that the purpose of the Put and Call Option Agreement is to ensure that there is a definite basis upon which the death or disablement of a partner is compensated. To allow the dissolution of the Partnership to frustrate that purpose would be to render the Put and Call Option Agreement incapable of enforcement.
If the Trigger Event occurs, relevantly, after the 6 month period, a partner, who suffered, by injury or illness, an horrific brain injury and/or was placed in a vegetative state, could have the benefits of the Put and Call Option Agreement rendered unenforceable by the simple device of terminating the Partnership during the 6 month period. Indeed, if a Partner died, that would terminate the Partnership [116] , but the Executor would still be able to serve an Option Notice and take the benefit of the Agreement. Thus, the parties to the Agreement contemplated that the Option Notice could be served after the termination of the Partnership. [117]
116. A partnership at common law is dissolved on the death of a partner and, in the absence of express agreement to the contrary, on the retirement of any partner. See also s 33 of the Partnership Act 1892. See also Mannigel v Aitken (1985) 9 FCR 1.
117. See also the terms of Clause 8.4 of the Put and Call Option Agreement.
The Put Option was granted by clause 2.2 on 29 June 2010 and was possessed by the plaintiff at all times between 29 June 2010 and 22 July 2016 (and probably until 25 July 2016). It was granted “subject to the occurrence of the Trigger Event”, but that simply disentitled the grantee from exercising the Option prior to the Trigger Event occurring; it did not negate the grant itself.
The option possessed by the plaintiff or another partner does not lapse on the death of the partner. [118] Nor would it lapse on the termination of the Partnership by other means. The Option is granted for consideration and, even if the consideration failed, was granted by Deed.
118. Carter v Hyde (1923) 33 CLR 115 at 121; [1923] HCA 36 (per Knox CJ), 132 (Per Higgins J), and for different reasons at [125] (per Isaacs J); Laybutt v Amoco Australia Ltd (1974) 132 CLR 57; [1974] HCA 49 at [70]-[71] (per Gibbs J).
As a consequence, on the proper, whether or not it was the preferred, construction of the Put and Call Option Agreement, the Option subsisted beyond the termination of the Partnership and the Option Notice could have been served between 23 June 2016 and, at least, 22 July 2016. It was not.
An Option Notice was not served at all. I accept that if the plaintiff were to have known of his capacity to serve the Option Notice, he would have done so. As earlier stated, the Option lapsed on or about 22 July 2016.
Notwithstanding that the earlier advice, to the effect that the Put and Call Option Agreement did not yet apply, was not, at one level, wrong, it was misleading or deceptive. The overall conduct was misleading or deceptive (or likely to mislead or deceive) because it represented to the plaintiff that he could do nothing to gain for himself the benefit of the Option. Further, for not dissimilar reasons, the failure to advise the plaintiff of his capacity to exercise the Put Option was negligent and a breach of the duty in contract arising from the Retainer, being the duty to exercise reasonable care and skill in advising the plaintiff, by informing him of that ability. [119]
119. The existence of that duty is not in issue: Further Amended Statement of Claim at [21] and Defence at [21].
I have dealt already with the duty and, under the rubric of “negligence”, with the breach of the contractual duty to exercise reasonable care and skill, including the need to assist the plaintiff in setting the objectives. I adhere to the view expressed in the earlier analysis that the failure to do so prior to 13 April 2016 probably delayed the plaintiff’s recognition of the need to exercise the Option. However, after 13 and 14 April 2016, the failure to advise on the course open to the plaintiff manifestly breaches the contractual duties and is actionable in tort and in contract.
Moreover, in this construction, I would hold that an implied term of the kind otherwise addressed earlier is also to be inferred. As a consequence, even though the Option would have been exercisable after the dissolution of the Partnership, the implied term would prevent steps being taken to negate the benefit of the Option, until it had otherwise lapsed. As earlier stated, the Option lapsed on or about 22 July 2016 and thereafter such steps would have been available and effective.
I turn then to the issues identified by the parties in their Agreed Facts. In my view, all or most of those issues have been answered, but I will make those answers express. I deal seriatim with the Issues in Dispute in the Joint Memorandum.
The terms of the Retainer [120] as described in the formal document of 29 February 2016 are set out at [145] above. They are the terms of the Retainer. However, in my view, there is no significant or substantial difference in effect between that which was required in “advising… with regards to [the] partnership” [121] and advising the plaintiff on: the Partnership dispute; the terms of the Partnership Documentation; and other matters arising therefrom which would protect the plaintiff’s rights. [122]
120. Issue in Joint Memorandum at [2.1]
121. Exhibit DDB1 pp 213 and 215.
122. Further Amended Statement of Claim at [18] and [19].
My preferred view [123] is that, in order to be suffering total and permanent disablement, relevantly, the plaintiff was required to be unable to undertake his usual activities in his usual occupation as a Partner in the Partnership for a period of six months. However, if my preferred view were incorrect, then the measure of total and permanent disablement was still the usual activities of the plaintiff as a Partner in the Partnership and that disablement had to be non-temporary, being an inability from which the plaintiff was not expected to recover, and which did not allow him to undertake his usual activities as a Partner.
123. Joint Memorandum at [2.2.1]
The Option [124] was able to be exercised after the Partnership had been dissolved but not after the Option had lapsed on or about 22 July 2016. Further, the “implied term” disentitled Mr Milevski from taking any steps that negatived the benefit for which the Partners had contracted.
124. Joint Memorandum at [2.2.2]
There was an implied term [125] to the effect of that claimed by the plaintiff, as addressed earlier in these reasons and which derives from the principles described by the High Court in Shepherd and Peters (WA).
125. Joint Memorandum at [2.2.3]
The Court is unaware of the nature of any allegation of misconduct that is raised by the question in the Joint Memorandum at 2.2.4. It is not pleaded. However, the plaintiff’s overdrawing, which, on the evidence before the Court, was known to Mr Milevski, was a breach of the terms of the Partnership Documents. [126] The overdrawing was known and recorded and, as a result, they do not represent a misappropriation but, rather, a debt owed to the Partnership, for which Mr Milevski could sue. [127] If the amount overdrawn would otherwise be profit, Mr Milevski would be entitled to 30% of the amount overdrawn. Whether or not profit, these actions would not be considered misconduct and, in these proceedings, there is no allegation of misconduct. The Court is of the view that the breakdown in the partners’ relationship (expressed, not surprisingly, in terms familiar to family lawyers, by the plaintiff) came as a result of the communication, or lack thereof, after the strokes on 23 December 2015 and the attitude thereto of Mr Milevski.
126. Heads of Agreement at Clause 7, together with Partnership Terms at Clause 1, 3 and 8.
127. See, for example, In the Estate of A.P. Kearney [1937] 44 WN(NSW) 117 at [118].
An implied term exists, as previously described. The Option was exercisable after the dissolution of the Partnership, but the Option lapsed on or about 22 July 2016, without ever being exercised [128] . As a consequence, the dissolution of the Partnership (or application therefor) was not, itself, a breach and damages for the non-payment of the Option cannot, on the evidence before the Court in these proceedings, run against Mr Milevski. They do run against the defendant herein for the reasons already adumbrated.
128. Joint Memorandum at [2.2.5]
The defendant was suffering a total and permanent disablement for the purposes of the Put and Call Option Agreement [129] , and could have exercised the Option [130] either between 23 June 2016 and about 22 July 2016 (my preferred view) or, otherwise, as early as 13 April 2016, which would then need to be completed by 30 days after the Option Notice was served.
129. Joint Memorandum at [2.3].
130. Joint Memorandum at [2.4].
The plaintiff did not return to work, of any kind, during the Option Exercise Period. Nor, did he return prior to the termination of the Retainer. [131]
131. Joint Memorandum at [2.5].
The question raised in the Joint Memorandum at [2.6] is the same as that posed in [2.2.3] and has already been answered expressly and otherwise in the body of these reasons.
The duty of care [132] of the defendant has already been described and, relevantly, included a duty to advise on the Option. The defendant did advise on the Option in a manner that was misleading or deceptive and in breach of its contractual duties and also renders it liable in tort. [133]
132. Joint Memorandum at [2.7]
133. Joint Memorandum at [2.8].
Apart from quantum, with which I will deal later in these reasons, the plaintiff suffered loss as a result of the defendant’s misleading or deceptive conduct and the defendant’s breach of duties in contract and tort. [134]
134. Joint Memorandum at [2.9]
The question in [2.10] of the Joint Memorandum does not, on the preferred view of the Court, require an answer. Whether or not the dissolution of the Partnership occurred, the Option was an accrued right, not personal to the grantee, and survived any dissolution. The dissolution, or the possibility of an adjournment, while rendering the circumstances more complicated does not affect, on that preferred view, damage to the plaintiff. Notwithstanding the foregoing, were the Court in the Equity proceedings to have known of the Put and Call Option Agreement, which it did not, it is most likely that an adjournment would have been granted and the Partnership not formally dissolved until after 22 July 2016.
Section 5O of the CL Act operates of its own force. Any professional defendant is “entitled to rely on it”. [135] However, the burden of proof under s 5O of the CL Act is on the party relying upon it. No evidence has been adduced by the defendant on peer professional opinion. I infer that any such evidence would not have assisted the defendant’s case. [136] The defendant has not established sufficient facts that would be necessary to establish a defence under s 5O of the CL Act.
135. Joint Memorandum at [2.11.1].
136. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
In answer to the poorly framed question in the Joint Memorandum at [2.11.2], the answer, again, is that the defendant is capable of relying on it. However, the uncontested evidence was that, at least by 13 April 2016, at which time the Retainer was still in existence, the plaintiff would have given those instructions. [137] The foregoing takes account of the alteration to instructions consequent upon the occurrences on 13 April 2016. The defendant was able to rely on such new instructions, because of the views it had itself expressed and the medical evidence available to it.
137. Affidavit of Dennis Paltos 13 April 2018 at [72]-[75].
As to Joint Memorandum at [2.11.2(c)], the Court does not consider that the plaintiff would have been in a better position by not exercising the Option. The defendant has certainly not established such a proposition. Moreover, the view now expressed does not depend on the burden of proof. Further, the evidence before the Court establishes, on the balance of probabilities that the plaintiff would have been better off if he were to have exercised the Option. Moreover, while the defendant had the capacity to rely on the matters in [2.11.2] of the Joint Memorandum, the findings of the Court on the facts to which they refer are against a case that is based on such matters.

The issue of contributory negligence and concurrent wrongdoers is dealt with later in these reasons, but the damages payable to the plaintiff are not to be reduced on such account. [138]
138. Joint Memorandum at [2.11.4].
The conduct of the defendant alleged in these proceedings relates to a failure to advise adequately or not to advise at all. It also relates to misleading or deceptive advice or representations. The defendant was not briefed to advise on the conduct of any litigation, except cursorily and at a time when the negligence and misleading or deceptive conduct had already occurred. It is the advice, or failure to advise adequately, on the rights under the Partnership Documents, when giving advice on the plaintiff’s Partnership and the protection of his position against the then non-litigious demands of Mr Milevski that gives rise to liability and that conduct had little or nothing to do with litigation. The only connection of the work of the defendant and litigation is historical. The defendant was not briefed in the litigation or to advise on it. [139]
139. Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16; Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13.
As already explained, on the Court’s preferred view, the dissolution [140] of the Partnership which was the subject of the litigation, late in the duration of the Retainer, had no effect on the plaintiff’s protection under the Option. The advice on the litigation by counsel briefed to appear was irrelevant to this cause of action and not negligent. Further any advice from the defendant to the plaintiff that the Put and Call Option Agreement could not be used to obtain an adjournment was, on the balance of probabilities, wrong, but was immaterial. It is not the advice of the defendant relating to the proceedings before the Equity Division that is in issue. The evidence before the Court discloses that counsel in the Equity proceedings was not briefed with the Put and Call Option Agreement.
140. Joint Memorandum at [2.11.5]
Although worded inaccurately so that an answer to the direct questions [141] asked may itself mislead, the Court answers those questions in reverse order. The advice was misleading or deceptive. It was so characterised because it represented that the plaintiff had no capacity to take advantage of the Option, because “it did not apply to him yet [or at this time]”.
141. Joint Memorandum at [2.12], [2.13] and [2.14].
The defendant had available to it the Put and Call Option Agreement. On any reasonable and available understanding of the law on the survival of Options, expressed, as in this Agreement, to survive, inter alia, death, the Options would and could be utilised, regardless of the dissolution of the Partnership. Such a protection or right of the plaintiff in his Partnership was fundamental to the task of advising the plaintiff. The defendant did not so advise and misled or deceived the plaintiff that there were no rights of which he could avail himself, once the Partnership had been dissolved. He suffered loss as a result of the misleading or deceptive conduct.

Damages

The defendant seeks to rely on three issues on the question of damages. First, it raises concurrent wrongdoer, being counsel briefed directly to appear at the proceedings in Equity in 2016. Counsel, Mr Loewenstein, was briefed at 6:02 PM on 20 April 2016 to appear before the Court, as otherwise constituted, on 21 April 2016.
It is not clear with what material Mr Loewenstein was briefed, but he was not briefed with the Put and Call Option Agreement. There are three reasons that he is not a joint wrongdoer. First, the advice (assuming there was some, at least oral advice) has not been shown to be negligent or in breach of contract. Secondly, the Consent Orders issued by the Court dissolved the Partnership. The dissolution of the Partnership, or consent thereto, did not cause damage to the Plaintiff. Thirdly, the immunity of counsel in such a circumstance is beyond question. It would be odd if, notwithstanding immunity, counsel could be a joint tortfeasor or joint wrongdoer (i.e. in contract), even though unable to be the subject of suit. It is unnecessary to decide the last issue, relating to whether a person under immunity can be a joint wrongdoer, because no concurrent wrongdoing can arise as a result of the other two aspects.
The defendant relies on other unidentified persons, from whom, it submits, [142] the plaintiff received advice and they were, as a consequence, joint wrongdoers. The defendant submits that the conduct of these unidentified persons should reduce the damages awarded to be paid by the defendant. I am unaware of any such advice.
142. Joint Memorandum at [2.11.4(iii)].
Further, there is no suggestion that such persons, if any, were under any contractual or proximate relationship such as to make any advice that may have been lacking in due care and skill (assuming the existence of such a duty) actionable or place them in the position of a “wrongdoer”, joint or otherwise. This claim is rejected.
Secondly, the defendant raises, as a reason for reducing or eliminating the damages against it, the contributory negligence of the plaintiff. [143] The issue of contributory negligence does not depend on the defendant’s perception of the plaintiff’s capacity. The evidence at the hearing discloses that the plaintiff had significantly impaired executive functioning and could not make complex decisions or decide on tactics.
143. Joint Memorandum at [2.11.3].
Further, the plaintiff engaged the defendant to provide the advice on matters which he felt he could not handle himself. The test for contributory negligence is the same, the necessary damages being made, as that for primary liability. [144]
144. Civil Liability Act, s 5R and s 5S.
The plaintiff attests to the fact that he was unaware of the matters which were necessary to exercise his own skill as a solicitor, were he capable of doing so. Given his disability, he cannot be expected to have exercised his own skill or be expected to interpret the Partnership Documents. There is no contributory negligence reducing the damages to be awarded.
Some comment must be made on the choices of the defendant in his litigation. The defendant was on notice of the evidence of Drs Lianos, Breen and Miller and another medical practitioner. Yet the defendant chose not to adduce any medical evidence. I infer that such evidence would not have assisted the defendant’s case and more readily accept the medical evidence adduced by the plaintiff.
Further, the defendant was on notice as to the evidence of Mr Duggan and cross-examined seeking to cast doubt on its accuracy. I have no doubt that Mr Duggan’s calculations are correct. They are certainly correct on the balance of probabilities. I also infer that evidence from any other accountant would not have assisted the defendant’s case, as it chose not to adduce any such evidence.
Further again, notwithstanding the burden of proof being on the defendant under s 5O of the CL Act, no evidence of peer professional opinion as to the appropriateness of the advice, or lack thereof, of the defendant, was adduced by it. Once more, I infer that such evidence would not have assisted the defendant’s case and draw comfort for the view that the advice should have been given in the terms addressed earlier in these reasons. Lastly, in this vein, the defendant, as already noted, did not call Mr Creais, its litigation partner, who conferred with and assisted in advising, the plaintiff. Again I draw the inference that his evidence would not have assisted the defendant’s case, but it makes little difference.
The Report of Ms Conoulty [145] was commissioned by the plaintiff in his proceedings against Mr Milevski. It deals with the value of the Partnership and other such issues, otherwise than as required under the Put and Call Option Agreement, which is now irrelevant in these proceedings. It does not deal with the calculation of the sale or purchase price under the Put and Call Option Agreement. While the defendant adduces it and seeks to rely on it, it does not deal with the calculation of damages arising from the plaintiff not exercising the Option. That failure to exercise was the direct result of the advice, or lack thereof, of the defendant.
145. Exhibit PB1, p 974 and following.
Notwithstanding a valiant attempt by the defendant to suggest double counting in the calculations of Mr Duggan, I reject that suggestion and accept the evidence of Mr Duggan. I shall direct the plaintiff to submit a minute of the order, reflecting the damage calculated by Mr Duggan and to which I refer hereafter.
As stated earlier in these reasons, an account was to have been ordered by the Court in the proceedings between the plaintiff and Mr Milevski. Those proceedings were due to be heard in August 2019. Mr Duggan calculates the value of the Partnership on the basis prescribed by the Put and Call Option Agreement as $2,016,724 and the purchase price of Mr Paltos’ interests as 70% of that amount, being $1,411,707.
The defendant submits that from that would necessarily be deducted the amount of overdrawing. The amount of overdrawing is not ascertained precisely on the evidence in the proceedings. It could be as low as $215,000 or as high as $514,000. [146] Mr Paltos suggested early in the dealings with the defendant that it could be as high as $400,000.
146. Exhibit PB1, p 597.
On the balance of probabilities, I conclude that the amount owing in overdrawing by the plaintiff was and is $373,809.79, [147] being the amount overdrawn by the plaintiff at 31 March 2016. No further drawings occurred, although the plaintiff would have otherwise been entitled to drawings from 1 April 2016 until 22 July 2016, which would amount to approximately 3 months at $215,000 per year, being $53,750, plus 70% of whatever profit then accrued. However, the Partnership was dissolved on 21 April 2016, so no allowance for allowed drawings by Mr Paltos should be made for any period after 31 March 2016.
147. Exhibit PB1, p 613.
For obvious reasons, the amount of damage ultimately suffered by the plaintiff as a result of the negligence of the defendant is affected by the amount that would be and may yet be awarded or ordered to be paid as a result of that account in the dispute between the plaintiff and Mr Milevski. On one view, the amount of damage could be greater, but I discount that possibility as not one that is greater than ephemeral and ought not to be an allowed factor, even on the basis of uncertainty. [148] The Court, as presently constituted, was desirous of having the result of the Equity Division proceedings before issuing any orders. The existence of those proceedings complicates the ascertainment of damage and loss which the defendant should be required to pay.
148. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4.
At this point in time, those proceedings have not been heard or concluded. The Court is unaware as to the reason for that. The difficulty with awarding all of the damages as indicated above is that it would allow the plaintiff to receive, on one view, at least in part, twice the damage (being the value of the Option and the goodwill, if any, of the Practice).
If the Court were to order that the plaintiff have his damages reduced in these proceedings by $373,809 and also be required to pay that amount (or have it set off) in the Partnership Equity Proceedings, that would be double-counting against the plaintiff. Having said that, it seems that the damage caused by the conduct of the defendant is the whole of the Option value of $1,411,707 and that which it is necessary for the plaintiff to repay is a matter, then, between him and Mr Milevski and should not be deducted.
Further, in addition to the foregoing amount, the terms of Clause 5.2 of the Put and Call Option Agreement require that at the exercise of the Option, the amount of the guarantee was also to be released. That amount is most probably $634,638.96, which must also be compensated. It is impossible, in the absence of evidence, to determine this amount.
It was submitted, by the plaintiff, that the difficulty associated with double counting the damage could be overcome by an undertaking that the plaintiff repay the defendant any amount received as a consequence of the proceedings in Equity. The difficulty with that course, left to its own devices, is that it deprives the plaintiff of any incentive to proceed with the litigation, or defend the litigation, in the Equity Division. Further, the repayment should not be confined to any award, but to any amount calculated to be the value of the plaintiff’s interest in the Partnership, less any amount allowed for the value of the guarantee.
This was one of the reasons that I had hoped that the Equity Division proceedings would have concluded by the time it was necessary to publish these reasons. Such an event was not to be.
In the circumstances, an undertaking of the kind submitted must be provided before any damages will be ordered. The foregoing undertaking must be to the effect that any amount received by or payable to Mr Paltos, as a result of the Equity proceedings involving him and Mr Milevski, must be paid to the defendant in these proceedings.
Further, the Court requires an undertaking that the defendant in these proceedings will have all rights of subrogation to the rights and remedies belonging to the plaintiff in relation to the proceedings against Mr Milevski. An undertaking that the plaintiff will consent to such subrogation, if the defendant so requests it, will be required before any order for damages issues.
A subrogation to which the last-mentioned undertaking refers need not be formal, but must allow the defendant in these proceedings (or its insurer, if nominated by the defendant) to exercise the plaintiff’s rights and remedies and to conduct the litigation that is otherwise before the Equity Division.
The overdrawing is not to be deducted from the damage payable as a result of these proceedings. That overdrawing will, presumably, if owed, be the subject of orders in the Equity Proceedings. Were I to deduct that estimated amount from the damage payable here, the plaintiff would be required to pay that amount twice.
Further, the plaintiff has lost his indemnity from debts that accrued after his Option would otherwise have been exercised. However, the Partnership dissolved on 21 April 2016 and any debts of the Partnership were therefore attributable to the period during which the plaintiff was a Partner. No indemnity is required from the defendant to replace that to which the plaintiff would have been entitled as a result of the exercise of the Put Option.
Pre-judgment interest shall be calculated from 22 July 2016 at the same rate as prescribed for post-judgment interest. Further, the defendant shall pay the plaintiff’s costs of and incidental to the proceedings. Any party may apply for any special or different order as to costs within seven (7) days and any response thereto may be filed and served within a further seven (7) days. Any such application must be served and may be lodged directly with my Associate.
I direct that the plaintiff file, within seven (7) days of the publication of these reasons for judgment, a minute of the order reflecting these reasons for judgment, including the undertakings. Any objection to the form of that order may be able to be taken within a further seven (7) days. The form of the order will be decided on the papers and each of the documents may be lodged directly with my Associate.

*********

Endnotes

Decision last updated: 09 June 2020

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] FCAFC 82 Dew v Richardson [1999] QSC 192 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213 Hawkins v Commonwealth Bank of Australia (1996) 66 IR 322 Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41; [1984] HCA 64 Hurley v McDonald’s Australia Ltd [1999] FCA 1728 In the Estate of A.P. Kearney [1937] 44 WN(NSW) 117 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Keddie v Stacks/Goudkamp Pty Ltd (2012) 293 ALR 764; [2012] NSWCA 254 Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 Kekatos v Sanson & Anor [2009] NSWCA 171 Koompahtoo Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Law Society of Singapore v Uthayasurian Sidambaram (2009) 4 SLR 674; [2009] SGHC 184 Laybutt v Amoco Australia Ltd (1974) 132 CLR 57; [1974] HCA 49 Luckin v Hamyln (1869) 21 LT 366 Mabbett v Josef and Sons Contracting Pty Ltd [2006] NSWSC 1452 Mackay v Dick (1881) 6 AC 251 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mannigel v Aitken (1985) 9 FCR 1 May v Mijatovic (2002) 26 WAR 95; [2002] WASC 151 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Murdoch v British-Israel World Federation (New Zealand) Inc [1942] NZLR 600 Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44 Pease v Courtney [1904] 2 Ch 503 Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45 Qantas Airways Ltd v Cameron, Leonie (1996) FCR 246; [1996] FCA 349 R v Barclay (1882) 8 QBD 486 R v Gray; Ex parte Marsh (1981) 157 CLR 351; [1985] HCA 67 R v Oakes [1959] 2 QB 350 Re Bradbury, Needham v Reekie [1950] 2 All ER 1150; [1951] 1 TLR 130 Re Glyn, Public Trustee v Attorney General [1950] 66 TLR(Pt. 2) 510 Re Scowcroft [1898] 2 Ch 638 Re The Licensing Ordinance (1968) 13 FLR 143 Riley v Pickersgill [2004] UKPC 14; [2004] 4 LRC 471 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Samper v Hade (1889) 6 WN (NSW) 77 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21 State of New South Wales v Shaw (2015) 97 NSWLR 169; [2015] NSWCA 97 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; [1982] FCA 136 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 Trust Co of Australia v Perpetual Trustees WA Ltd (1997) 42 NSWLR 237 Ward v Metlife Insurance Ltd [2012] WADC 166 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Texts Cited:	Enright & Merkin, Sutton on Insurance Law, 4th ed (2014) PLG Brereton, “Acting for the Incapable - A Delicate Balance” (2012) 35 Australian Bar Review 244
Category:	Principal judgment
Parties:	Dennis Paltos (Plaintiff) Bartier Perry Pty Ltd (ACN 124 690 053) (Defendant)
Representation:	Counsel: C Freeman (Plaintiff) J Emmett / H Grace (Defendant) Solicitors: Polczynski Robinson Lawyers (Plaintiff) Yeldham Price O’Brien Lusk Lawyers (Defendant)
File Number(s):	2017/301216