Pomitix Pty Ltd v Rees Law

SUPREME COURT OF QUEENSLAND

CITATION:

Pomitix Pty Ltd v Rees Law [2016] QSC 100

PARTIES:

POMITIX PTY LTD (ACN 008 108 441)

(plaintiff)

v
REES LAW

(defendant)

FILE NO/S:

No 4300 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2016

JUDGE:

Dalton J

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – GENERALLY – where the plaintiff entered into a contract of sale – where the plaintiff argues that the defendant did not advise it of certain risks – where the defendant argues that the plaintiff’s cause of action is statute barred – where the plaintiff argues that there was no reasonably arguable basis for the defence – whether a paragraph of the defence should be struck out

Commonwealth v Cornwell (2007) 229 CLR 519, considered
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, considered

COUNSEL:

W Sofronoff QC, with B F Charrington for the plaintiff

D Clothier QC for the defendant

SOLICITORS:

Bennett & Philp for the plaintiff

Barry.Nilsson. Lawyers for the defendant

1. Application was made to strike out a paragraph of the defence which takes a limitation point.  Except for one factual matter which I deal with at the end of these reasons, the application proceeded upon the pleadings.  The ground advanced for striking out the plea was that there was no reasonably arguable basis for the defence.

2. The Claim in this proceeding reads as follows:

   “1.   Damages in the sum of ($1,233,416.50) caused by reason of the negligence of the defendant;

   2.    Ongoing interest on such damages calculated at the default rate as prescribed by the Queensland Law Society under the Real Estate Institute of Queensland Residential Contract for Sale; and

   3.    Costs.”

3. The prayer for relief in the amended statement of claim is for “damages in the sum of $815,000 caused by reason of the negligence of the defendant”.  By amendment, interest is claimed under the Civil Proceedings Act 2011 (Qld) and Supreme Court Act 1995 (Qld), rather than under the contract for sale.  It does not appear that the Claim has been amended. 

4. The amended statement of claim pleads that the defendant was a solicitor and was retained to act on behalf of the plaintiff in respect of the sale of a piece of land.  It is pleaded that the contract of retainer had implied terms to the effect that the defendant would exercise reasonable care and skill; protect the plaintiff’s interests in relation to the contract of sale and associated transactions; advise the plaintiff of risks associated with the contract of sale and associated transactions, and advise the plaintiff on appropriate means to protect itself from “economic harm associated with the contract of sale” and related transactions.  A separate paragraph pleads that further, or in the alternative, a duty was owed as a consequence of the…