Phillips v MacDonnells Solicitor

SUPREME COURT OF QUEENSLAND

CITATION:

Phillips v MacDonnells Solicitor [2010] QSC 62

PARTIES:

MARK GERARD PHILLIPS
(Plaintiff)
v
MacDONNELLS SOLICITORS (a firm)
(Defendant)

FILE NO/S:

353 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

9 March 2010

DELIVERED AT:

Cairns

HEARING DATE:

16 October 2009

JUDGE:JUDGE:

Jones J

ORDER:

1. That judgment be entered for the defendant against the plaintiff.

2. That the plaintiff pay the defendant’s costs of and incidental to the claim (including the defendant’s costs of and incidental to this application) to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – PARTNERSHIP LAW – application of r 292 and r 293 Uniform Civil Procedure Rules 1999 (Qld) in granting summary judgment – whether the plaintiff has no real prospect of succeeding in his claim – claim of damages against a law firm for breach of retainer and breach of duty of care – was there notice of a dissolution of partnership pursuant to s 35 of the Partnership Act 1891 – was there a loss attributable to the conduct of the defendant

COUNSEL:

J Jacobs for the plaintiff
M Jonsson for the defendant

SOLICITORS:

O’Reilly Stevens Bovey, Lawyers for the plaintiff
Miller Bou-Samra Lawyers for the defendant

1. The plaintiff was the unsuccessful party in litigation which he commenced against a former business partner.  He now claims damages for breach of retainer and breach of duty of care against the defendant, the firm of solicitors who advised him in the course he took in terminating the partnership.  The damages are within the jurisdictional range of the District Court and he now makes application for leave to remove the proceedings to that Court.

1. The defendant’s firm makes application for judgment pursuant to R 293 of the Uniform Civil Procedure Rules (UCPR) contending that the plaintiff has no prospects of succeeding in the action because, amongst other things, he cannot show any loss.

1. Should the proceeding remain on foot, the defendant does not oppose the plaintiff’s application.  I have determined to hear the defendant’s application for judgment.

1. The plaintiff and his former partner formed a partnership for the purpose of using assets which comprised a pontoon and moorings on the Great Barrier Reef and various Marine Park permits which allowed the use of those items.  The partners were also directors and shareholders of a corporate tourist business to which the partners gave a right of use of the pontoon.

1. The plaintiff’s central allegation against the defendants relates to advice they gave as to the effect of two documents – the partnership deed and shareholder agreements.  The effect of the alleged advice was that if the plaintiff gave notice of his retirement from the partnership with an offer to sell his partnership interest and the sale offer was not accepted, then an open sale of the business would follow.  The defendants deny that that was the substance of the advice. 

1. The plaintiff…