Robert Bax & Associates v Cavenham Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177

PARTIES:

ROBERT BAX & ASSOCIATES
(appellant)
v
CAVENHAM PTY LTD
ACN 003 736 672
(respondent)

FILE NO/S:

Appeal No 11683 of 2011
SC No 14239 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2012

JUDGES:

Holmes and Muir JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Refuse leave to amend the Notice of Appeal by the addition of grounds 14A and 14B; and

2.    Appeal dismissed with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – RETAINER – EXTENT OF RETAINER – where the respondent company lent approximately $2.2 million in a series of four transactions to a Gold Coast nightclub – where the respondent had been told that the borrower's solicitors would register a first mortgage over the lot purchased with the funds from the first loan, however this did not occur – where the respondent believed the loan agreement amounted to security – where the respondent’s bank manager had retained the appellant to act for the respondent after the first loan transaction was complete – where the nightclub business was placed into receivership – where the appellant argued the retainer was of a limited clerical type – where the primary judge found that the appellant was obliged proactively to act generally in the respondent’s interests which included advising the respondent about the need for legal protection against contingencies which may arise – where the primary judge found that the appellant breached the retainer – whether the primary judge’s findings were correct on all the evidence

EVIDENCE – ADMISSIBILITY AND RELEVANCY – HEARSAY – IN GENERAL – ADMISSION IN EVIDENCE WITHOUT OBJECTION – where a letter dated 18 March 2004 was admitted as evidence at trial – where the appellant contended that the letter was hearsay and not admissible as proof of the retainer – whether the letter was admissible as proof of existence and content of the appellant’s retainer

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – RELATIONSHIP OF PROXIMITY – where the primary judge found that the appellant’s breach caused the respondent’s loss in respect of all the loans – where on appeal the primary judge was not shown to have erred – where an application to amend the notice of appeal was therefore made – whether the respondent’s conduct was so unreasonable that the claimed losses could not be regarded as flowing from Mr Bax’s conduct – whether the application to amend ought be allowed

Amadio Pty Ltd v Henderson (1998) 81 FCR 149; [1998] FCA 823, considered
Calvert v Flower (1836) 173 ER 172; [1836] EngR 433,…

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Details
Case
[2012] QCA 177
Decision Date

CaseChat Overview and Summary

Robert Bax & Associates took on the role of solicitors for Cavenham Pty Ltd, a company that loaned approximately $2.2 million to a Gold Coast nightclub in four separate transactions. The company was informed by the solicitors that a first mortgage would be registered over the lot purchased with the funds from the first loan. However, this did not occur, and the company believed the loan agreement amounted to security. After the first loan transaction was complete, the company's bank manager retained the appellant to act for the company. When the nightclub business was placed into receivership, the appellant argued that the retainer was of a limited clerical type, but the primary judge found that the appellant was obliged to proactively act in the company's interests, which included advising the company about the need for legal protection against contingencies that may arise. The primary judge found that the appellant breached the retainer, and the company sought to appeal the decision. The appeal centred on the extent of the appellant's duties and whether the primary judge's findings were correct on all the evidence. The company also challenged the admissibility of a letter dated 18 March 2004 that was admitted as evidence at trial. The company argued that the letter was hearsay and not admissible as proof of the retainer, but this argument was unsuccessful.

The appeal was also concerned with the essential elements of an action for negligence, including the duty of care, reasonable foreseeability of damage, and the relationship of proximity. The primary judge found that the appellant's breach caused the company's loss in respect of all the loans. On appeal, it was not shown that the primary judge had erred. An application to amend the notice of appeal was made, but it was refused. The court found that the respondent's conduct was not so unreasonable that the claimed losses could not be regarded as flowing from Mr Bax's conduct, and the application to amend ought not be allowed. The appeal was dismissed with costs.

Orders

Orders of the court

1. Refuse leave to amend the Notice of Appeal by the addition of grounds 14A and 14B; and

2. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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