Rosser v Yates

[2006] NSWSC 793

CITATION:	Rosser v Yates [2006] NSWSC 793
HEARING DATE(S):	10/7/06, 11/7/06, 12/7/06, 13/07/06, 14/07/06, 17/07/06, 19/07/07
JUDGMENT DATE :	11 August 2006
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Mathews AJ
DECISION:	Verdict and judgment for the plaintiff in the sum of $7,550. Order the plaintiff to pay the defendant's costs of the proceeding.
CATCHWORDS:	Claim of solicitor's professional negligence - limitations questions - whether exceptions to the normal rules on limitations - previous District Court proceedings between plaintiff and his former business partner - re-litigating issues already decided - whether abuse of process - whether defendant's breach led to plaintiff's loss in District Court - whether claim against solicitors for loss of partnership property
LEGISLATION CITED:	Limitation Act 1969 Trade Practices Act 1974 (Cth) Harbours Act (1936) (SA) Fair Trading Act (1987)
CASES CITED:	Hawkins v Clayton (1988) 164 CLR 530 Walmsley v Cosentino [2001] NSW CA 403 Rippon v Chilcotin Pty Limited [2001] NSWCA 142 Franke v CIC Insurance
PARTIES:	Michael Jack ROSSER - Plaintiff Adrian Richard YATES - Defendant
FILE NUMBER(S):	SC 20405/01
COUNSEL:	Mr D Cochrane - Plaintiff Mr G Curtin - Defendant
SOLICITORS:	Hargreaves Pickering - Plaintiff Colin Biggers and Paisley - Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List

Mathews AJ

11 August 2006

20405/01
Michael Lewis Jack ROSSER v Adrian Richard YATES
JUDGMENT

HER HONOUR:

Introduction

1 The plaintiff, Michael Rosser, is claiming damages for breach of contractual duty, or alternatively for negligence, from his previous solicitor, Adrian Yates, trading as A. R. Yates and Co. The case has numerous complexities as a reading of this judgment will reveal. It also has a very long history: The events giving rise to these proceedings date back to the late 1980’s and early 1990’s. The proceedings themselves have also been very protracted: the original Statement of Claim was filed on 23 May 2001, more than five years before the matter came on for hearing. Much of the intervening time was taken up with pleading matters, particularly relating to the Statement of Claim. The Further Amended Statement of Claim on which the plaintiff finally relied was the fourth document of its kind which was sought to be filed in the proceedings. Various issues relating to discovery and the production of documents also arose before the matter was ready for hearing.

Damages sought by the plaintiff

2 At the outset of these proceedings, Mr Cochrane, who appeared for the plaintiff, handed up a summary of heads of damages claimed by the plaintiff, together with interest on each item calculated up to 10 July 2006, being the first hearing day of these proceedings. Many of the amounts claimed dated back to 1991. In those cases the amount sought by way of interest significantly exceeded the original amount claimed. It is, however, inappropriate to deal with interest before discussing the merits of the individual claims. The following are the principal amounts sought by the plaintiff in accordance with this document.

Head of Damage	Amount Claimed
1. Personal items and equipment	$420,000.00
2. Franke Estate costs from District Court Proceedings	$30,226.00
3. Rosser costs from District Court Proceedings	$48,014.00
4. Damages relating to the “Accolade”	$126,000.00
5. Damages relating to the “Wooree”	$20,000.00
6. Further proceeds from the “Coral” judgment	$50,000.00
7. Interest on “Coral” costs	$8,550.00
8. Non economic loss	$7,500.00 to $10,000.00

The total principal amount sought by the plaintiff in these proceedings is thus in excess of $700,000.

Factual background

3 The background of the matter, briefly, is as follows. In about 1987 the plaintiff entered into an informal business partnership with Franciscus Franke. The partnership was involved in buying ships, marine equipment, machinery and other objects and selling them at a profit. Most of the partnership business was conducted from premises at Unanderra, south of Wollongong. These premises, which were owned by Mr Franke, consisted of a small office building and a large outside area where a great deal of stock was kept, some of it belonging to the partnership and some of it to Mr Franke personally. The partnership banking was done through an account in Mr Franke’s name and his spouse, Jennifer Graham, was generally in charge of the records and the book keeping for the partnership. The plaintiff assisted with the purchasing of the stock and some of the paperwork, but his main role was in negotiating the sales of the items which the partnership had purchased.

4 Early in 1990 Mr Franke suffered a stroke. According to the plaintiff this caused a change in his personality. He became argumentative, bad tempered and made a number of imprudent business decisions. The relationship between the two men, which had previously been good, deteriorated badly. By the end of that year, 1990, they were in serious dispute with each other about a number of partnership matters. The partnership had already ceased the buying side of its business before then, but it still owned a number of valuable assets. Some of these assets are the subject of the present proceedings

5 One of the vessels owned by the partnership was the “Coral”. In about 1989 the plaintiff organised the sale of the “Coral” to a consortium in India, and for this purpose he arranged for the vessel to be towed to the port of Alang in India. On 3 March 1990, whilst under tow, the “Coral” sank off the north coast of New South Wales. The vessel’s insurer, CIC Insurance Limited, (CIC) rejected the claim for the loss, and Mr Franke suggested going to his solicitor, Adrian Yates, to seek advice on the issue. This was the first meeting between the plaintiff and the defendant.

6 In due course Mr Franke, through the defendant’s firm, commenced proceedings against CIC in the Supreme Court of New South Wales, claiming under the “Coral” policy. Matthew Gamble, a solicitor employed by the defendant, was in charge of the litigation. As the policy was in Mr Franke’s name, he was the sole plaintiff in the proceedings, although most of the instructions were provided by the plaintiff.

7 On 7 August 1991 Cole J gave judgment for the plaintiff in the sum of US$424,284 plus interest. (Franke v CIC General Insurance Ltd (5048 of 1990)). This translated into a verdict of A$689,657.60.

8 Two days later, on 9 August 1991, Mr Rosser consulted John Dawson, Solicitor of Corrimal. On the same day Mr Dawson wrote to the defendant’s firm, confirming that Mr Rosser had an interest in respect of the CIC proceedings and requesting that the proceeds of the judgment, after deduction of the defendant’s costs, be held in trust for the partnership pending resolution of the dispute between Mr Franke and Mr Rosser.

9 On 12 August 1991 a meeting took place at the defendant’s office between Mr Gamble, Mr Franke and Mr Rosser. The primary purpose of this meeting was to attempt to reach agreement between the two partners as to the distribution of the proceeds of the “Coral” judgment. In the early stages of the meeting, which lasted for some hours, there were acrimonious exchanges between Mr Rosser and Mr Franke. However in due course an agreement was reached between them and a document, described as a “Short Agreement”, was hand written by Mr Gamble and signed by both the plaintiff and Mr Franke. This agreement is central to the issues raised in these proceedings. It is reproduced in Appendix “A” to this judgment.

10 A quick reading of this agreement shows that it dealt with issues extending well beyond the distribution of the proceeds of the “Coral” judgment. Considerable evidence was given, both by Mr Rosser and Mr Gamble, as to what led up to the completion of this agreement, and I shall be returning to it later.

11 Amongst the various issues in dispute between the plaintiff and Mr Franke in August 1991 were matters involving two vessels, the “Accolade” and the “Wooree”. Mr Franke had previously been living on the “Accolade”, in the Port of Adelaide. Mr Rosser said that he had organised a profitable sale of the vessel. However, as it later transpired, the Port of Adelaide had distrained the vessel for the non-payment of Port fees and had already sold it the before the meeting of 12 August 1991, although neither Mr Rosser nor Mr Gamble knew this at the time. The series of events relating to the “Accolade” constitutes part of the plaintiff’s claim against the defendant (claim 4 in para [2]), and I will be returning to discuss this matter later.

12 Also outstanding at the time of the 12 August 1991 meeting was an issue between the partners relating to a vessel called the “Wooree” (claim 5 in para [2]). This raises quite different issues, and again I will be returning to discuss it later.

13 A significant issue between Mr Rosser and Mr Franke at that time related to a number of the plaintiff’s personal items and equipment which had been taken into Mr Franke’s possession. These were covered by clause 10 of the Short Agreement, in which Mr Franke agreed to return the items at a time and place to be agreed between them. Mr Franke was also in possession of certain partnership property in which Mr Rosser claimed he was entitled to a half interest. However no property was ever handed over to Mr Rosser before Mr Franke died, on 16 January 1996.

14 Shortly before Mr Franke’s death, Mr Gamble had ceased to act for Mr Rosser. In February 1996 Mr Rosser instructed his present solicitors. In December of that year, he commenced District Court proceedings against Mr Franke’s estate in relation to the property he claimed should have been returned to him. These proceedings were ultimately determined against him. Mr Rosser says, in the present proceedings, that the unfavourable outcome of the District Court proceedings was directly attributable to the present defendant’s negligence or breach of contractual duty. He therefore seeks the amount which was claimed in the District Court, (claim 1 in para [2]) together with the costs he was required to pay both to his own lawyers and to those of the Franke estate (claims 2 and 3 in para [2]).

15 The series of events relating to the property claimed by Mr Rosser from Mr Franke, including the circumstances of the District Court proceedings, gives rise to the most significant portion of Mr Rosser’s claim in the current proceedings, and I will be discussing it in detail a little later.

16 In the meantime I must briefly return to the “Coral” litigation. Cole J’s decision in Franke v CIC Insurance was appealed by Mr Franke, as to quantum, and a cross-appeal was lodged by CIC. The appellant’s solicitor on the record was the defendant, but all work on the matter was carried out by Mr Gamble. On 18 April 1994 the Court of Appeal allowed Mr Franke’s appeal and increased the damages to US$514,248. CIC’s cross-appeal was dismissed. This represented an increase of A$194,893 in the damages awarded to Mr Franke, and this amount was in due course paid by CIC to Mr Yates’ office. After deducting a little over $27,000 for the appellant’s costs, Mr Gamble divided the additional damages equally between Mr Rosser and Mr Franke, paying $93,759.99 to each of them. The Court of Appeal had ordered that CIC pay Mr Franke’s costs of the appeal. However, it was not until March 2000, nearly six year later, that. the costs were ultimately recovered This constitutes a further component of the plaintiff’s claim against the defendant (claim 7 in para [2]), and I will be returning to it later.

Limitations

17 The present proceedings were commenced on 23 April 2001. The statement of claim pleads causes of action in contract and in tort. Under s 14(1) of the Limitation Act 1969 a six year limitation period applies in relation to both these causes of action.

18 It is therefore necessary to determine when the limitation periods started to run in this case or, more precisely, when the causes of action were complete. In relation to the tort of negligence, the cause of action is complete when damage is first suffered. This applies whether or not the damage continues to grow or further damage is suffered. In the present case many of the plaintiff’s complaints relate to what he says was the defective drafting of the agreement dated 12 August 1991. The damage was therefore suffered on that date. The claims relating to the “Accolade” and the “Wooree” are in a different category, but the defendant submits that any damage sustained by the plaintiff in relation to these vessels would have long pre-dated 23 April 1995.

19 As to claims in contract, the cause of action accrues on breach. Insofar as the present claim asserts that there was a breach of the defendant’s contractual duty in the drafting of the agreement of 12 August 1991, this is, on the face of it, also statute barred. It is also submitted that there were continuing breaches on the part of the defendant in relation to at least some of the heads of damage claimed by the plaintiff, in that the defendant failed to pursue these matters on behalf of the plaintiff despite having been requested to do so. In those cases the breaches might be said to have continued until the defendant’s retainer was withdrawn, which was well within the limitation period. However for reasons I will give later, I do not consider that there were any continuing breaches as suggested by the plaintiff.

20 Mr Cochrane is, in any event, submitting that all causes of action pleaded in the statement of claim are actionable in these proceedings. In this respect he relies, at least in part, upon principles enunciated in Hawkins v Clayton (1988) 164 CLR 530 and Walmsley v Cosentino [2001] NSW CA 403 (21 November 2001).

21 Deane J in Hawkins v Clayton suggested that there is an exception to the general rule that the limitation period commences to run when the cause of action is complete, which applies in circumstances where the defendant’s wrongful action not only causes injury to the plaintiff but effectively precludes the plaintiff from commencing proceedings to recover damages for the injury:

22 The exception to the general rule which was suggested by Deane J in Hawkins v. Clayton is to be found in the following passage from his Honour’s Judgment (supra at 590):

"If a wrongful action or breach of duty by one person not only causes unlawful injury to another but, while its effect remains, effectively precludes that other from bringing proceedings to recover the damage to which he is entitled, that other person is doubly injured. There can be no acceptable or even sensible justification of a law which provides that to sustain the second injury will preclude recovery of damages for the first. It would, e.g., be a travesty of justice and common sense if the law provided that a cause of action lay for damages for false imprisonment but then went on to provide that that cause of action would be lost if the false imprisonment continued for six years after the cause of action first accrued. Likewise, it would be a travesty of justice and common sense if the law imposed a duty upon a solicitor to take positive steps to inform a third person of the contents of a document of which the solicitor was alone aware and then provided that any cause of action against the solicitor for damage caused by a negligent failure to perform that duty would be lost if the negligence continued for six years. It is arguable that the notion of unconscionable reliance upon the provisions of a Statute of Limitations which provides the foundation of the long established equitable jurisdiction to grant relief in a case of concealment of a cause of action until after the limitation period has expired (cf. s.55(1) of the Limitation Act) should, by analogy, be extended to cover cases such as these where the wrongful act at the one time inflicts the injury, and while its effect remains, precludes the bringing of an action for damages. It seems to me, however, that the preferable approach is to recognise that it could not have been the legislative intent that the effect of provisions such as s.14(1) of the Limitation Act should be that a cause of action for a wrongful act should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of proceedings. On that approach, the reference in s.14(1) of the Act to the cause of action first accruing, should be construed as excluding any period during which the wrongful act itself effectively precluded the institution of proceedings." (P 590)

23 However, as Powell JA observed in Walmsley v Cosentino, the status of the exception suggested by Deane J is unclear, given that other members of the Court founded their concurring judgments upon bases other than that suggested by Deane J. Walmsley v Cosentino involved, in common with the present case, an allegation of negligence against a solicitor. The solicitor had acted for the prospective plaintiff in a personal injuries case arising out of an accident which occurred in August 1980. Legal proceedings were not commenced within the six year limitation period. Much later, in January 1992, the solicitor advised the client that as the limitation period had expired, his only resource might be to sue the solicitor in negligence. However, he failed to advise the client that the negligence proceedings would need be brought within a further six years, namely before August 1992. It was not until February 1993, after the second limitation period had expired, that the solicitor arranged for the client to see another solicitor in order to obtain appropriate advice. The client later commenced District Court proceedings claiming negligence on behalf of the solicitor. Garling DCJ found for the plaintiff upon the basis that the solicitor was negligent in continuing to act for the client until the expiration of the second limitation period, without telling him that a claim would have to be brought within the six year period and advising him to obtain independent legal advice. This finding was upheld in the Court of Appeal. The Court, however, declined to apply the exception enunciated by Deane J. in Hawkins and Clayton. Powell JA made the following observation:

“But even if one assumes that the exception suggested by Deane J is to be regarded as part of the law of Australia, it does not seem to me that that would avail the Respondent in the present case. It was always open to the Respondent, if he were dissatisfied with the apparent lack of progress on the part of the Appellant in processing his claim, to terminate the Appellant’s instructions, to seek advice from other solicitors, and to retain them to commence, and to prosecute, proceedings on his behalf.” [49]

24 Section 55 of the Limitations Act provides that a limitation period fixed under the Act will not run so long as a cause of action or the identity of a person against whom a cause of action lies is fraudulent concealed. The Court of Appeal in Walmsley v Cosentino declined to apply s 55, saying that it required a consciousness on the part of the defendant that what was being done is wrong. There was no evidence of any such consciousness in that case.

25 Mr Cochrane, as I understand it, urges that there are no limitation barriers to the present proceedings upon the following bases: first, he submits that the limitation period did not commence to run until the recoupment of the plaintiff’s losses became impossible, namely when the District Court delivered its adverse judgment on 23 September 1998. Secondly, he submits that Walmsley v Cosentino is distinguishable from the present case, and that the exception enunciated by Deane J in Hawkins v Clayton applies in the present circumstances. Thirdly, he submits that s 55 of the Limitations Act applies, in that the defendant knowingly concealed from the plaintiff the existence of a cause of action against him.

26 The first matter raised by Mr Cochrane can apply only in relation to the matters arising from the District Court proceedings (claims 1,2 and 3 in para [2]). Claims 2 and 3 are clearly not statute barred, as the liability to pay these costs did not accrue until the District Court judgment of 23 September 1998. However the plaintiff can only succeed in relation to any of claims 1, 2 or 3 if he can establish that the loss of the District Court proceedings was directly attributable to the defendant’s negligence or contractual breach. For reasons I will give later, the plaintiff cannot succeed on this issue.

27 The second matter relied upon by Mr Cochrane cannot, in my view, be sustained. The circumstances of this case were much stronger from the defendant’s point of view than those of Walmsley v Consentino. Mr Rosser consulted another solicitor, Mr Pickering, in February 1996 in relation to all these issues. If we take the agreement of 12 August 1991 as the starting point, there remained at that stage eighteen months within which to commence proceedings against the present defendant. The fact that a decision was made to commence proceedings instead against the Franke estate is, in my view, irrelevant to the limitations issue.

28 Finally, in relation to Mr Cochrane’s third submission, I consider that s 55 can have no application in this case. There is no evidence whatsoever that the defendant, or Mr Gamble on his behalf, ever adverted to the possibility that the plaintiff might commence proceedings against them. Still less is there any evidence of deliberate concealment on their part.

29 It follows that, in relation to significant parts of the plaintiff’s claim, I would be disposed to find that the statute of limitations applied and the claim was statute barred. However, given the history of these proceedings, and given that my findings on most other issues in the case are in any event adverse to the plaintiff, I think it appropriate to proceed and give my reasons for reaching those determinations.

Property claimed by the plaintiff

30 Between late 1987 and September 1989 Mr Rosser and his spouse lived on board the vessels “Darra” and “Coral” at New Farm, Brisbane. In September 1989 they moved to Wollongong. Before doing so, Mr Rosser bought two enclosed shipping containers and two open containers. He placed a large quantity of steel wiring and other steel items into the open containers. Into the closed containers he put a large number of personal items together with various tools, machinery and rope. All four containers were then transported from Brisbane to Mr Franke’s yard at Unanderra. At about this time Mr Franke was vacating the Unanderra premises, and by the end of this process, forty container loads of property were taken from Unanderra to Mr Franke’s property at Turondale near Bathurst, where he was then residing. The two containers containing Mr Rosser’s property were initially taken to another yard at Unanderra but were later also transported to Mr Franke’s property at Turondale.

31 All this happened well before 12 August 1991. As at that date every item of property to which Mr Rosser was later to claim entitlement was, so far as he knew, kept at the Turondale property.

Agreement of 12 August 1991

32 This brings me to say something about the meeting of 12 August 1991. What transpired at this meeting, and in particular the agreement which was reached between Mr Rosser and Mr Franke, is crucial to subsequent events.

33 The event which triggered this meeting was the favourable outcome of the Supreme Court proceedings between Mr Franke and CIC relating to the loss of the “Coral”. As indicated earlier, on 7 August 1991 Cole J gave judgment for the plaintiff for A$689,657. On that day, Mr Rosser said that he received a telephone call from Mr Gamble telling him about the judgment and informing him that Mr Franke, as the plaintiff in the Supreme Court proceedings, was likely to demand that he receive the whole of the verdict moneys. He suggested that Mr Rosser see another solicitor and ask him to write a letter to him, Mr Gamble, confirming that Mr Rosser had an interest in the “Coral” proceeds. Mr Gamble has no recollection of this conversation, although, as I understand it, he does not deny that a conversation along these lines might have taken place.

34 Two days later, on 9 August 1991, Mr Rosser consulted a Corrimal solicitor, Mr John Dawson. On the same day, 9 August 1991, Mr Dawson wrote to the defendant’s firm noting Mr Rosser’s interest in the “Coral” judgment. The final paragraph of his letter reads as follows:

“Our client requests that should money be received from CIC pursuant to the judgment then the balance of the proceeds of such judgment monies after deduction of your costs is to be held in trust for the partnership pending resolution of the partnership dispute and agreement between Mr Franke and our client as to distribution of the proceeds of the Court action.”

35 The meeting between Mr Rosser, Mr Franke and Mr Gamble took place on the afternoon of 12 August 1991. It commenced with Mr Gamble telling them that the meeting was called in an attempt to settle the dispute between the two of them but that, if they were unable to reach agreement, he would be unable to continue to act for either of them. They would need to get separate legal advice. Mr Rosser says that Mr Gamble emphasised the urgency of resolving the matter because Mr Yates was anxious that his firm should receive its costs in relation to the “Coral” proceedings. Mr Gamble vehemently denied that he said anything along these lines. The defendant’s firm would have been able to claim their costs, he pointed out, whether or not the parties agreed as to the distribution of the proceeds.

36 I accept Mr Gamble’s evidence in this regard. There was no link at all between the payment of the defendant’s costs and the dispute between the plaintiff and Mr Franke as to the allocation of the verdict moneys. In addition, I consider it unlikely in the extreme that Mr Gamble would have made such overtly imprudent remarks.

37 At the outset of the meeting Mr Franke claimed that he was entitled to virtually the whole of the “Coral” proceeds. The plaintiff, no doubt anticipating this, had brought with him to the meeting a large document headed “Business Income and Expenditure Recorder” in which he had noted various financial contributions he had made to the partnership. The early part of the meeting was, on all accounts, very heated, with recriminations and accusations passing between Mr Franke and the plaintiff. According to Mr Gamble, the discussion became very broad, and included matters other than the division of the “Coral” proceeds. Mr Gamble was not participating in this discussion, but was taking notes of the figures mentioned by both parties as to their respective contributions to the partnership and their interest in partnership assets. Mr Gamble, who was a qualified accountant, ultimately used these figures to arrive at a division of the proceeds of the “Coral” case. The process by which he reached this result was set out in Mr Gamble’s statement for the District Court proceedings, as follows:

“In the notes I recall calculating the division of the monies which Mr Franke and Mr Rosser would receive from the Coral case. I took into account the expenses of both Mr Franke and Mr Rosser and their varied interests in other assets owned by them. I then took into account an allowance for a proportion of interest for Mr Franke. Once these amounts were agreed between Mr Rosser and Mr Franke I deducted those amounts from the amount which would be received from the Coral case. I divided the balance in half. I then allocated to Mr Franke and Mr Rosser expenses and the balance of settlement monies. I therefore arrived at a division of the proceeds of the Coral case. Both Mr Franke and Mr Rosser agreed with the calculations and the division of the proceeds of the judgment which I had made,.”

38 The distribution was by no means an equal one. Mr Franke received almost $450,000 to the plaintiff’s $210,000. Mr Gamble said in his evidence before me that there were a number of big items which he took in account in Mr Franke’s favour. One was the cost of towing the “Coral”, another was the premium paid to CIC, an amount of about $20,000. In addition Mr Franke had made an advance payment on account of the costs in the “Coral” litigation.

39 In due course both the plaintiff and Mr Franke agreed to the calculations made by Mr Gamble. Mr Gamble advised them that agreement should be reduced to writing and they concurred with this. It was in these circumstances that Mr Gamble wrote the Short Agreement reproduced in Appendix A. It was then signed by both parties and witnessed by Mr Gamble.

40 There was further discussion between the partners after the signing of the agreement, particularly relating to the vessels the ‘Accolade’ and the ‘Wooree’. I shall be returning to this later, when discussing the issues in relation to those vessels

41 According to Mr Gamble, the signing of the short agreement cleared the air between the plaintiff and Mr Franke. They both left the meeting expressing their contentment that the issues between them had been resolved. The plaintiff, however, said in his evidence before me that he was not at all happy at the agreement which had been reached, and he felt that he had been pressured into signing it. However I do not accept this. Any unhappiness that the plaintiff might feel about this agreement arises, in my view, as a result of subsequent events.

Events following 12 August 1991

42 Putting aside, for the moment, the issues relating to the “Accolade” and the “Wooree”, the outstanding issue between the plaintiff and Mr Franke after 12 August 1991 was the return of the plaintiff’s personal property which at that stage was held at Mr Franke’s Turondale property.

43 It is common ground that none of this property has ever been returned to the plaintiff. The plaintiff says that he was completely reliant upon Mr Gamble to organise the return of his property. Quite early in the piece, the plaintiff said, Mr Franke threatened him with violence if he were ever to go near the Turondale property. Mr Gamble, he said, also warned him at one stage about Mr Franke’s animosity towards him and suggested that it would be unwise to go to Mr Franke’s property. According to the plaintiff, he frequently telephoned Mr Gamble asking how the return of his property was proceeding. Mr Gamble told him, in effect, that there was no rush, and the situation would be resolved in due course.

44 Mr Gamble denied knowing of any threats from Mr Franke to the plaintiff. He conceded that he had a number of telephone conversations with the plaintiff who was asking what was happening about the collection of his property. He, Mr Gamble, would telephone Mr Franke, who replied that the plaintiff should call him direct. Mr Gamble passed this response onto the plaintiff.

45 To the extent that it is necessary in these proceedings to determine the correct version of events, I accept that Mr Gamble did not know of any physical danger posed by Mr Franke to the plaintiff, although he was well aware of the animosity between the two men. I accept also that there were numerous occasions over the next four years when the plaintiff raised with Mr Gamble the issue of the return of his property and asked what was happening about it. However at no time did he ever give Mr Gamble specific instructions that he, Mr Gamble, was to arrange for the property to be collected on the plaintiff’s behalf. This being the case, the failure of Mr Gamble to procure the return of the plaintiff’s property did not constitute a breach of any contractual duty owed to the plaintiff.

46 In December 1995 or January 1996 the plaintiff withdrew the defendant’s retainer in all matters relevant to this case. This followed a telephone conversation between the plaintiff and Mr Gamble to the following effect. The plaintiff said “I’ve had enough of Frank”. Mr Gamble said that he also was having difficulty communicating with Mr Franke. The plaintiff repeated that he had had enough of Mr Franke. Mr Gamble said “You’ll have to sue him. You will be aware that I cannot do anything for you. I’m acting for both of you. You’ll have to go and get someone else. There is a conflict of interest.” The plaintiff then agreed to consult another solicitor.

47 The plaintiff said that this conversation took place on 9 January 1996, a week before Mr Franke’s death. Mr Gamble put it somewhat earlier, probably in December 1995. However nothing turns on this. In February 1996 the plaintiff consulted another solicitor, Mr Pickering, in relation to the recovery of the personal items and equipment from Mr Franke’s estate. In December of that year the District Court proceedings were commenced.

The District Court proceedings

48 On 23 December 1996 Mr Pickering as the plaintiff’s solicitor, filed an Ordinary Statement of Claim in the District Court seeking damages of $250,000 against Geoffrey Franke as executor of the estate of the late Franciscus Franke. The statement of claim sought the return of the plaintiff’s equipment or alternatively damages for detinue or conversion of the equipment. The following items of personal equipment were listed in the statement of claim:

1x6x4 Warman split case solution pump ex Brisbane (estimated value)	$20,000.00
1 x 8 x 6 Warman AH E Frame Type AV Pump. Serial number S20779 (estimated value)	$30.000.00
1 x 8 x 6 Warman AH E Frame Type AV Pump. Serial number S20779 (estimated value)	$5,000.00
1 new 8 strand square nylon marine tow rope, 220 metres (estimated value)	$18,000.00
Approximately 12 rolls of new and secondhand mooring/tow rope ex MV Darra Sold but not delivered to Mr Hislop	$10,000.00
Personal effects of Mr Rosser including tools and spare parts ex Brisbane And Wollongong (estimated value)	$20,000.00
$103,000.00 _________

49 In addition, the plaintiff sought damages for conversion of one half of his share in certain partnership property which was listed as follows:

Various sizes of rope purchased from Naval Store in August, 1989 (estimated value)	$90,000.00
36 inch dredge pump bowl moved by the Deceased ex QCL “Coral” Brisbane (estimated value)	$60.000.00
$150,000.00 ________

50 The District Court proceedings thus involved eight groups of items. They were listed numerically in those proceedings, and for ease of reference I propose to do the same, referring to them in the following abbreviated form:

Item No.	Brief Description
1.	6 x 4 Warman Pump
2.	8 x 6 Warman Pump
3.	Marine gearbox
4.	Nylon rope
5.	Tiger rope
6.	plaintiff’s personal effects
7.	wire rope
8.	dredge pump bowl

51 In due course a Notice of Defence was filed on behalf to the Franke estate. The defendant’s solicitor was Mr Yates, the current defendant. At one stage during the District Court proceedings the plaintiff objected to the defendant representing the estate, claiming that there was a conflict of interest. However he was unable to demonstrate that he was prejudiced in any relevant respect by reason of the defendant having previously acted for him, and no action was taken in relation to this matter.

52 The principal evidence presented on behalf of the plaintiff in the District Court came from the plaintiff himself and, interestingly, from Mr Gamble, who by that time had left the defendant’s employment and set up his own practice. The other evidence given on behalf of the plaintiff went solely to the valuation of the various items of property. Very high valuations were put on some of the claimed items, with the result that the amount ultimately claimed, and the amount now claimed in these proceedings, totalled $420,000 instead of the $178,000 initially sought in the District Court Statement of Claim.

53 Evidence was given on behalf of the defence by the late Mr Franke’s son, Geoffrey Franke, who was executor of his estate, and by his widow, Jennifer Franke Graham. However not having had personal dealings with the plaintiff relating to the claimed items, they were unable to take the matter much further. In addition, the defendant called evidence as to the valuation of the claimed items.

54 At the close of the evidence in the case Bowden DCJ reserved his judgment. Judgment was later delivered on 23 September 1998. Judge Bowden clearly took an adverse view of the plaintiff’s credibility. He noted that notwithstanding that Mr Gamble was the plaintiff’s witness, their evidence diverged in a number of relevant respects. He determined that, where there was any conflict between the plaintiff’s evidence and that of any other witness, he preferred the other witness. He then turned to discuss the evidence relating to each of the items claimed by the plaintiff. Ultimately his Honour found that, in relation to items 2,3,4 and 5 in paragraph [50] above, he was not satisfied that these had ever belonged to the plaintiff. They were therefore not part of his personal items and equipment and did not fall within clause 10 of the Short Agreement. Items 1 and 6, on the other hand, were found to have fallen within clause 10 of the Short Agreement and his Honour noted that the plaintiff was entitled to have them delivered to him. His Honour concluded that neither the late Mr Franke nor his executor had converted or detained any of the plaintiff’s property. He found that the plaintiff had had ample opportunity since 1991 to collect the items to which he was entitled.

55 As to items 7 and 8, the partnership property, his Honour made the following observations and findings:

“In the plaintiff’s opening, it was unequivocally put that the plaintiff’s case was that the items numbered seven and eight were partnership property and the plaintiff was entitled to half, or half the value. I cannot see how such property could ever come within the description in clause ten of the agreement as being Mr Rosser’s personal items and equipment.

The entitlements to partnership property were succinctly dealt with in the written agreement. Mr Gamble says he made a number of allowances in dividing the available money. From a discussion about merely dividing the proceeds of the insurance claim, the negotiations proceeded to a resolution of the dispute over each partner’s interest in the partnership and to be a final solution to all rights and interests in that partnership. The document neither requires nor lends itself to some, but only some specific items of partnership property, being notionally divided and distributed so that one half became part of “Mr Rosser’s equipment”. Further, it was never part of the plaintiff’s case as pleaded or as opened.”

56 His Honour accordingly entered a verdict for the then defendant and ordered the plaintiff to pay the defendant’s costs. The costs subsequently paid by the plaintiff, both to his own solicitor and to the solicitor for the then defendant (that solicitor being, somewhat ironically, the present defendant), are claimed in these proceedings. (See claims 2 and 3 in paragraph [2] above.)

57 Following the District Court judgment, some attempt was made on behalf of the Franke estate to make items 1 and 6 available for collection by the plaintiff. However the plaintiff has never collected them. He said in his evidence that little was left of his personal property, and what remained had deteriorated.

58 In these circumstances I cannot conceive how the plaintiff can have any claim against the defendant in relation to items 1 and 6. His failure to collect those items following the District Court judgment was of his own choice. Having failed to do so, he cannot now claim damages for any deterioration in the value of the property, as he is quite unable to quantify it.

59 It follows that, insofar as the plaintiff’s claim in these proceedings for “personal items and equipment” includes items 1 and 6 as claimed in the District Court proceedings, the plaintiff cannot succeed in establishing any actionable breach on the part of the defendant.

60 As to the other items claimed in the District Court proceedings, an issue has been raised on behalf of the defendant as to whether it is now open to the plaintiff to re-litigate those issues.

Abuse of process?

61 Mr Curtin, who appeared for the defendant in these proceedings, submitted that any attempt on the part of the plaintiff to re-litigate issues which were determined against him in the District Court, constitutes an abuse of process. In this respect he relied on the judgment of the New South Wales Court of Appeal in Rippon v Chilcotin Pty Limited [2001] NSW CA 142. In that case the purchasers of a business, having become dissatisfied with their purchase, brought Supreme Court proceedings against the vendor claiming breach of contract and a breach of s 52 of the Trade Practices Act 1974 (Cth). The basis of their claim was that the net profits of the business had been misrepresented either fraudulently or negligently. The plaintiffs succeeded in their claim for breach of contract but in a much lesser amount than they had sought. Their claim under s 52 was dismissed. Subsequently the purchasers commenced District Court proceedings against the accountants who had formulated the profit figures. The accountants submitted that the plaintiff’s claim constituted an abuse of process as it was an attempt to re-litigate issues which had been adversely determined in earlier proceedings. The judge at first instance found that there was no abuse of process. However the Court of Appeal found differently. Handley JA, with whom Mason P and Heyden JA agreed, concluded that the second proceedings threatened the integrity of the administration of justice and raised the possibility of conflicting judgments. As such they constituted an abuse of process.

62 There is considerable substance in the defendant’s submission that the present proceedings constitute an abuse of process, at least in relation to the return of the plaintiff’s property (claim 1 in paragraph [2]). The plaintiff lost his case in the District Court in relation to items 2 to 5 in paragraph [50] because Bowden DCJ was not satisfied that any of this property was owned by the plaintiff. In relation to items 7 and 8, which was partnership property, His Honour found that the plaintiff’s right to claim any interest in that property was relinquished by the agreement of 12 August 1991. These are precisely the issues which the plaintiff seeks to re-litigate in these proceedings.

63 Mr Cochrane, however, submits that the plaintiff is raising additional issues in this case, which take the situation outside the purview of Rippon. They are: first, that it was the defendant’s defective drafting of the Short Agreement, particularly Clause 10, which led to the plaintiff’s failure in the District Court. Secondly, the plaintiff’s inability to prove ownership of items 2 to 5 as claimed in the District Court was caused by the defendant’s wrongful failure to return to him documents which would have proved his ownership of those items.

64 Both issues raised by Mr Cochrane are significant, and in one sense go to the heart of this case, at least so far as the plaintiff’s claim for damages relating to his property is concerned. I shall discuss each of these matters in turn.

Claim of defective drafting.

65 The plaintiff’s primary complaint relates to clause 10 of the Short Agreement. That clause, it will be remembered, provides as follows:

10. Mr F Franke to return Mr M Rosser’s personal items and equipment as agreed between the parties at a time and place agreed”

66 Mr Cochrane submits that this clause was deficient in that it should have listed the personal items and equipment to be returned to the plaintiff, either within the agreement itself or in a schedule attached to the agreement. There is force in this submission. Indeed both Mr Gamble and the defendant, Mr Yates, agreed in cross-examination that it would have been prudent for the property to have been itemised. However that is by no means the end of the matter. The real question is what flows from this breach, assuming for present purposes that it was one.

67 This takes us directly back to the District Court proceedings. The plaintiff sought in those proceedings to prove ownership of each of the items 2 to 5 in paragraph [50] above. It is unnecessary for present purposes to go into details of the evidence relating to the individual items. Suffice it to say that, on the basis of the whole of the evidence in those proceedings, Bowden DCJ was not satisfied that any of those items were owned by the plaintiff. They therefore did not fall within the description of “Mr Rosser’s personal items and equipment” in clause 10 of the Short Agreement. In the proceedings before me the plaintiff adduced no further evidence as to his ownership of those items, other than to tender the full record of the District Court proceedings. And this is where the plaintiff’s problem lies in relation to this issue. If the plaintiff was unable to persuade Bowden DCJ that the disputed items were his personal property, how can I be satisfied, with no additional evidence having been adduced, that any list of the plaintiff’s property under clause 10 of the Short Agreement would have included those items? As Mr Curtin rightly submits, this takes us directly back to the abuse of process issue. Under a slightly different guise, but on the basis of identical evidence, the plaintiff is now seeking that I make findings which are directly contrary to those made in the District Court proceedings.

68 In my view it is not open to me to find that, had clause 10 been meticulously drafted so that it contained lists of all the plaintiff’s relevant property, that property would have included items 2 to 5 in paragraph [50]. Accordingly, any defect in the drafting of that clause has not been found to result in any identifiable loss to the plaintiff.

69 The claims relating to items 7 and 8 in paragraph [50] raise somewhat different issues. It will be remembered that in the District Court proceedings the plaintiff sought a half share of these items on the basis that they were partnership property. Bowden DCJ found against the plaintiff upon the basis that the property in question was then in the possession of Mr Franke and that the plaintiff had relinquished his claim to it under clause 6 of the Short Agreement. Mr Cochrane submits that clause 6 was never intended to apply to these particular items of partnership property, which were to be dealt with under separate arrangements made between the plaintiff and Mr Franke. But this is contrary to the evidence of Mr Gamble, who said that he understood that the plaintiff and Mr Franke wanted to end all their ties, with the exception only of outstanding matters relating to the “Accolade” and the “Wooree”. More significantly, it is also contrary to the findings of Bowden DCJ in the District Court, which takes us directly back to the abuse of process issue.

70 It follows that any defect in the drafting of the Short Agreement cannot avail the plaintiff in these proceedings.

71 Before leaving this issue, I should say something about a matter that was raised in supplementary written submissions made by Mr Cochrane on behalf of the plaintiff. These submissions related to an item which was generally described in the District Court proceedings as the “wire rope”. Mr Cochrane referred to various items of evidence, which he suggested supported the plaintiff’s entitlement to the wire rope. He submitted that this evidence established that, had the Short Agreement been properly drawn so that it included a list of the plaintiff’s personal items and equipment, the wire rope would have been included in that list. However, as Mr Curtin pointed out in his supplementary submissions, it was not claimed in the District Court that the wire rope was a personal item belonging to the plaintiff. To the contrary, the wire rope, which was item No.7 in paragraph [50], was claimed in the District Court Statement of Claim to be partnership property. The plaintiff lost his District Court claim in relation to this item, not because he was unable to prove ownership of it, but because he was taken to have relinquished any right to it under clause 6 of the Short Agreement. Nor is it open to him now to claim it as his personal property, as distinct from partnership property. If he were to seek to do so he would be caught by the Statute of Limitations. Both the breach and damage would then have occurred on 12 August 1991. The intervening District Court proceedings would have had no relevant effect, given that the plaintiff would now be asserting a claim which was not advanced in those proceedings.

72 For these reasons I reject the plaintiff’s submission that the issue relating to the wire rope should be treated any differently from the other issues raised in the District Court.

73 I turn now to the second matter raised by Mr Cochrane, relating to the missing documents which, it is suggested, would have supported the plaintiff’s ownership of the property claimed in the District court proceedings.

The missing documents

74 In his primary affidavit filed in these proceedings, the plaintiff said that when he packed his equipment into the shipping containers back in 1989 he wrote a list of the items being packed. This list, or inventory, was then placed into a file which he kept in relation to the “Coral” (the “Coral” file). During the course of the “Coral” case, he handed the “Coral” file to Mr Gamble. Much later, during the course of the District Court proceedings, he asked for the return of his documents. He was told by Mr Denning, who was then handling Mr Franke’s case on behalf of the defendant, that all documents had been handed over to the late Mr Franke’s widow, Jenny Franke. The plaintiff has not seen these documents since. The inventory was not discovered by the defendant in the District Court proceedings.

75 The plaintiff said that the “Coral” file also contained a ledger which he had written out during the time he was living on board the “Coral” and the “Darra” in Brisbane. This document contained details of items which he had purchased both personally and on behalf of the partnership. This also has not been seen since.

76 Mr Cochrane submits that the defendant was in breach of his contractual duty to the plaintiff by handing the plaintiff’s documents to a third party. I do not understand the defendant to be disputing the proposition that any documents provided by the plaintiff should have been returned to him and that the defendant would be liable for any loss caused by his firm’s failure to do so. However there is a real issue as to whether the “Coral” file, which was indubitably handed to Mr Gamble during the “Coral” litigation, contained either the inventory or the ledger as claimed by the plaintiff. And even if these documents were given to Mr Gamble, the defendant submits that the plaintiff has suffered no identifiable loss as a result of his firm’s failure to return them.

77 There is no evidence other than the plaintiff’s to suggest that the file which was handed to the defendant during the “Coral“ litigation included the inventory and the ledger which were relevant to the District Court proceedings. Mr Gamble could recall no such documents being part of the file.

78 In order for the plaintiff to establish a contractual breach sounding in damages arising from this sequence of events, he must establish the following matters: First, that the “Coral” file did include the inventory and ledger. Second, that the outcome of the District Court proceedings would have been different if these documents had been available to him during those proceedings.

79 I would have great difficulty in finding the first matter established on the balance of probabilities. But assuming, for present purposes, that these documents were given by the plaintiff to the defendant, I would be quite unable to reach an affirmative finding on the second matter. The documents described by the plaintiff could only have affected the plaintiff’s claim in relation to his personal property and equipment, being items 1 to 6 in paragraph [50] above. The production of the inventory or ledger would have had no effect upon his claims in relation to the partnership property (items 6 and 7 in paragraph [50]) which failed for quite different reasons. The plaintiff himself conceded, in cross-examination by Mr Curtin, that neither the Warman 8 x 6 pump nor the Marine gear box (items 2 and 3 in paragraph [50]) would have been included in the inventory or ledger. Mr Franke had, on the plaintiff’s case in the District Court, agreed to give these items to the plaintiff in exchange for work carried out by him. They would therefore not have been listed in either of these documents.

80 There remain only items 4 and 5 in paragraph [50]. In relation to these items there is no basis for making an affirmative finding that the plaintiff’s claim in the District Court would have succeeded if the inventory and ledger had been available to him. In this regard the defendant has tendered a letter dated 22 July 2002 to the plaintiff’s present solicitor, Mr Hargreaves, from Mr Pickering, describing a visit by Mr Pickering and the plaintiff to the defendant’s office during the pendency of the District Court proceedings, for the purpose of inspecting documents discovered in those proceedings. Mr Pickering confirmed that the plaintiff was concerned that there were significant documents which had not been produced. The letter proceeded in the following terms.

“What documents were missing, if any, is another issue. Most of the documents I saw produced by A R Yates & Co and the Estate bore very little direct relevance on the issues in the litigation. In fact they seemed to be more concerned with the Coral proceedings. Having said that I can only comment on the documents that I saw. Michael was never able to inform me exactly what specific documents existed that had direct relevance to the issues being litigated in the proceedings.” (emphasis added).

81 In the light of all this material I could not possibly be satisfied that the District Court proceedings would have been determined differently if these documents had been available to the plaintiff.

Conclusion relating to the District Court proceedings

82 It follows from all I have said that the plaintiff has failed to establish any loss or damage arising from any negligence or breach of contractual duty on the part of the defendant in relation to the District Court proceedings. His claim for damages relating to his personal items and equipment (claim 1 in paragraph [2]) must therefore fail. It inevitably follows that his claim for the costs of the District Court proceedings (claims 2 and 3 in paragraph [2]) must also fail.

The “Accolade”

83 I turn now to discuss one of the remaining matters raised by the plaintiff, relating to the vessel “Accolade”. The “Accolade”, which was then moored in the Port of Adelaide, was purchased by the partnership in 1988 for $60,000 and registered in the name of Frank Franke. Thereafter Mr Franke and his wife lived intermittently on the “Accolade” which continued to be moored in the Port of Adelaide. In April 1990 an offer was received from Incom Ltd, a London based company, to purchase the “Accolade” for US$300,00 to be delivered at Alang in India. The plaintiff says he told Mr Franke about this offer but he refused to sign a transfer on those terms. Subsequently the plaintiff re-negotiated the arrangement with Incom Ltd in a manner that was acceptable to Mr Franke. The purchase price was to be US$150,000, and the vessel to be handed over in Adelaide.

84 During the course of 1990, as noted earlier, the relationship between the plaintiff and Mr Franke deteriorated badly. The plaintiff said that, in October of that year, he consulted Mr Gamble because Mr Franke was refusing to sign the sale documents related to the “Accolade”. However the plaintiff now accepts that this conversation could not have taken place as he described, for Mr Gamble did not commence working in the defendant’s practice until the beginning of 1991.

85 It is clear that the “Accolade” was discussed by the plaintiff and Mr Franke at the meeting of 12 August 1991 after the “Short Agreement” had been signed, although there is some dispute as to the content of that discussion. The plaintiff said that Mr Franke told him that the Port of Adelaide Authority had claimed possession of the “Accolade” because it said that he had not paid port fees. Mr Gamble offered to contact the Port Authority and resolve the matter if Mr Franke gave him the relevant details. Mr Gamble agreed with the substance of this conversation, except he said that his role was confined to ascertaining the current position from the Port Authority. He did not undertake to “resolve” the issue. The plaintiff said that during the meeting Mr Franke agreed to sign the sale documents relating to the “Accolade”. Mr Gamble disputed that this part of the conversation took place.

86 Mr Gamble was subsequently provided with information relating to the “Accolade” and on 23 August 1991 he wrote to the South Australian Department of Marine and Harbours enquiring as to the vessel’s status. In response he received a letter dated 12 September 1991 from the South Australian Crown Solicitor saying that the “Accolade” was distrained on 23 October 1990 and subsequently sold on 23 July 1991 pursuant to the provisions of the Harbors Act (1936) SA. The letter went on to say that numerous attempts had been made to contact Mr Franke but no response had been received from him. The “Accolade” had been sold for $45,000. The outstanding dues, charges and rates amounted to nearly $42,000. When administrative fees were added, the debt exceeded the purchase price. The Department intended to write off the deficit.

87 The plaintiff expressed consternation when Mr Gamble told him about this. On his version, he asked Mr Gamble what could be done about it. Mr Gamble replied that it was too late: nothing could be done about it. Subsequently, at his (the plaintiff’s) request, a meeting was arranged between himself and Mr Franke at the defendant’s office. After a brief acrimonious exchange, Mr Franke walked out.

88 Mr Gamble’s version is quite different. He recalled the plaintiff’s concern when he was told about the sale of the “Accolade”. The plaintiff asked what could be done about it, and Mr Gamble told him that he could not advise him and that he should seek other advice on the matter.

89 Mr Gamble had no recollection of any meeting between the plaintiff and Mr Franke relating to the “Accolade”.

90 It is the plaintiff’s case that he left it to Mr Gamble to “sort out” what action to take in relation to the “Accolade”. Mr Gamble disputes this. He says that his role in relation to the “Accolade” was to ascertain the status of the vessel from the Port authorities. Having done that, he received no further instructions in relation to the matter.

91 The plaintiff’s claim in relation to the “Accolade” is that the defendant, through Mr Gamble, failed to take action to recover the losses sustained by the plaintiff as a result of this sequence of events.

92 There are various reasons why, in my view, the plaintiff’s claim in relation to the “Accolade” cannot succeed. First, I am not satisfied that Mr Gamble was ever instructed to take action to recoup the plaintiff’s losses in relation to the “Accolade”. In fact, I think it probable that he was not so instructed,

93 In any event, it is difficult to see what action could have been taken on behalf of the plaintiff. Mr Cochrane suggested that a claim might have been made against the Port authorities for the losses sustained by the plaintiff arising out of the forced sale of the “Accolade”. However, there was no evidence whatsoever to suggest any irregularity on the part of the Port authorities in relation to their dealings with the “Accolade”. A presumption of regularity applies in relation to such dealings. Accordingly there can be no complaint about the defendant failing to take action which, on the available evidence, would have been doomed to failure.

94 Mr Cochrane also suggests that action should have been taken against Mr Franke. In this regard I accept that the defendant was in a position of conflict and would have been unable to advise the plaintiff, if asked to do so, as to his rights against Mr Franke.

95 It is, in any event, very difficult to see what claims the plaintiff might have had against Mr Franke. There are significant restrictions on the rights of one partner to claim losses in relation to partnership’ property from another partner. .Mr Cochrane suggested, in his written submissions, that the release clause in the agreement of 12 August 1991 was procured by the deception of Mr Franke, who must have known that the “Accolade” had already been sold, and the agreement was therefore voidable by the plaintiff. The plaintiff’s opportunity to set aside the release in the Short Agreement and recover damages from Mr Franke was lost, according to this submission, when the limitation period under the Fair Trading Act became statute barred in August 1994.

96 However the evidence indicates that the “Accolade” was never intended to be included in the release contained in clause 6 of the Short Agreement, and that there was a collateral oral agreement relating to it. This was certainly the view of Mr Gamble. It was also the plaintiff’s understanding that he and Mr Franke were to take equal shares in the proceeds of both the “Accolade” and the “Wooree” notwithstanding the release contained in clause 6. This being the case, it is difficult to see how the Fair Trading Act has any application.

97 Perhaps the greatest difficulty faced by the plaintiff in relation to the “Accolade” arises from events which took place after he had consulted Mr Pickering. This, it will be remembered, was in February 1996. The plaintiff said in his primary affidavit filed in these proceedings that at that stage he had accepted Mr Gamble’s advice that there was nothing he could do about the “Accolade” or the “Wooree”. Consequently he did not seek Mr Pickering’s advice on either of these issues. However on 19 February 1996 Mr Pickering wrote to the defendant, as the solicitor for the Franke estate, informing him of the plaintiff’s claim upon the estate. One of the items claimed was “amount due to Mr Rosser from Mr Franke failing to reclaim moneys from MV “Accolade” and MT “Wooree” proposals: $50,000”.

98 Even more significantly, on 16 December 1996 Mr Michael Meek of Counsel, who appeared for the plaintiff in the District Court action, gave a written advice to Mr Pickering relating to the outstanding disputes between the plaintiff and the Franke estate. Other than the proceeds of the “Coral” judgment, which appeared to be no longer in contention, the then outstanding disputes related to the return of Mr Rosser’s goods and equipment, and outstanding issues relating to the “Wooree” and the “Accolade”. Mr Meek’s advice, in relation to the return of the plaintiff’s goods and equipment, was that proceedings should be commenced in the District Court to claim either the goods themselves or to recover their assessed value. In relation to both the “Accolade” and the ”Wooree” Mr Meek concluded that the plaintiff would have were no real prospect of success in pursuing his complaints against the Franke estate. Accordingly his advice was that the impending proceedings should relate only to the return of the plaintiff’s goods and equipment.

99 Precisely one week later, on 23 December 1996, the statement of claim was filed in the District Court. In accordance with Mr Meek’s advice it related only to the plaintiff’s property and equipment.

100 A recitation of this series of events indicates how misconceived the current proceedings are insofar as they relate to the “Accolade”. The plaintiff had ample opportunity to take action against Mr Franke within the limitation period, if any such action was available. His failure to do so was because he received independent advice that he would be unlikely to succeed. One must ask how he could possibly have any legitimate complaint against the defendant in relation to this series of events.

The “Wooree”

101 The comments I have just made in relation to the “Accolade” apply equally to the “Wooree”. However for the sake of completeness I think I should briefly describe the background of the dispute relating to this vessel. Most of it comes from the plaintiff’s various affidavits and statements.

102 In about 1988 Mr Franke told the plaintiff that he had just paid $40,000 to a man called Bob Ballantyne to purchase a half share in a tug, the “Wooree”. The plaintiff remonstrated about this use of partnership funds. Mr Franke responded that the tug would be useful for towing the “Coral” and other vessels to India.

103 The plaintiff said that during the meeting on 12 August 1991, after the Short Agreement had been signed, Mr Franke told him that Bob Ballantyne had “shot through” with the “Wooree”. The plaintiff said that he would ascertain the whereabouts of Mr Ballantyne and the “Wooree”, and would give the information to Mr Gamble. Mr Franke was to give Mr Gamble the rest of the information that he would need in order to recover the partners’ interest in the “Wooree”.

104 Mr Gamble agreed with much of this conversation. However he said that the plaintiff was to give Mr Ballantyne’s details to Mr Franke, not himself. It was Mr Franke who was then going to follow the matter up. Mr Gamble agreed that the plaintiff telephoned him a few days later with details of Mr Ballantyne. He told the plaintiff that he would pass the information on to Mr Franke, which he then did. That, he said, was the end of his involvement in relation to the “Wooree”.

105 It is clear that the partnership received nothing in exchange for the $40,000 paid by Mr Franke to Mr Ballantyne. The “Wooree”, as it transpired, was not even registered in Mr Ballantyne’s name. However I accept that Mr Gamble was at no time instructed either by the plaintiff or by Mr Franke, to seek recovery of the $40,000 which had been paid for this vessel. It is submitted by Mr Cochrane that the plaintiff lost entitlement to claim his share of the $40,000 upon signing the Short Agreement. However, as already indicated, neither the “Accolade” nor the “Wooree” were intended to be included in the release contained in clause 6 of the Short Agreement. The Short Agreement was irrelevant to the “Wooree” issue.

106 As was the case with the “Accolade”, the plaintiff had every opportunity to claim losses relating to the “Wooree” from the Franke estate. He failed to do so not because of any breach by the defendant, but because he was advised that any such claim would have little prospect of success. It follows that the plaintiff cannot succeed in his claim under this head.

Additional proceeds from “Coral” judgment

107 I come now to discuss the sixth claim made by the plaintiff in these proceedings. This is a claim for $50,000 which the plaintiff says is an additional amount due to him from the proceeds of the “Coral” case.

108 The sole basis for this claim is a conversation deposed to by the plaintiff which he said took place between himself and the Mr Gamble in the court foyer during the course of the District Court proceedings. The conversation was to the following effect.

Rosser: “I do not understand how you came up with the figures for the distribution of the “Coral” proceeds.”
Gamble: There was at least another $50,000 due to you from the “Coral” proceeds. When I proposed the division to you I was expecting you to put something back to me.

109 Mr Gamble denied that he ever said these words or anything like them on this or any other occasion.

110 In my view it is highly unlikely that Mr Gamble would have made the concession described by the plaintiff. No entitlement has been made out under this head.

Interest on “Coral” costs.

111 The final matter claimed by the plaintiff arises from the defendant’s delay in claiming costs to which the plaintiff and Mr Franke were entitled after their successful appeal in the “Coral” case. The Court of Appeal judgment was handed down on 18 April 1994. The Court ordered CIC to pay the appellant’s costs. CIC in due course paid to the defendant the additional amount awarded by the Court of Appeal. From this the defendant deducted a little over $27,000 for costs, divided equally between the plaintiff and Mr Franke, before distributing the proceeds between them. However no steps were taken to recoup the costs from CIC. It was not until the middle of 1998, during the course of the District Court proceedings, that the plaintiff’s solicitors raised this issue with the defendant. At that stage the defendant agreed that, if Mr Gamble had failed to pursue the issue of costs, then the defendant would be prepared to do so.

112 Further correspondence ensued between the parties at about that time. Thereafter it seems the matter went into abeyance until it was again raised on behalf of the plaintiff at the end of 1999. The defendant at that stage re-commenced negotiations with CIC to reach an agreed settlement as to the amount of costs. Ultimately all parties agreed to a settlement of $16,500. On 16 March 2000 the defendant sent a cheque payable to the plaintiff in the sum of $7,960.30, being fifty percent of the total costs recovered less fifty percent of the amount paid for the costing of the file ($579.40).

113 The plaintiff claims interest on this amount from the time when the costs should have been recouped if the defendant was acting with due diligence.

114 Mr Curtin on behalf of the defendant does not dispute the plaintiff’s entitlement to some amount on this account. He submits however that the plaintiff is only entitled to interest on the costs between September 1994 and January 1996. The defendant’s retainer was terminated by the plaintiff in January 1996. This, according to the submission, brought an end to the defendant’s obligation to seek these costs on the plaintiff’s behalf. Moreover there were further delays between September 1998 and late 1999, some of which were caused by the plaintiff’s reluctance to allow the defendant to act for him in relation to the “Coral” costs, given the other disputes which existed between them.

115 I cannot accede to Mr Curtin’s submissions in this regard. Both the plaintiff and Mr Franke were out of pocket in relation to the “Coral “ costs, and it was incumbent upon the defendant, as a prudent solicitor, to seek to recover those costs without undue delay. Had he done so, the costs would probably have been recovered by late 1994, well before the defendant’s retainer was terminated and before other disputes had arisen between the plaintiff and the defendant.

116 In my view the plaintiff is entitled to receive interest on the amount of $7,960.30 from 16 September 1994 to 16 March 2000, a period of five and a half years. In making this calculation I am rounding up the amount to $8,000, and applying the interest rate allowed by the Court during that period. On my calculation, the amount of $4,697 is thus reached. The plaintiff is also entitled to interest on this last amount from 16 March 2000 to the date of judgment, namely 11 August, 2006. Rounding it up to $4,700 and applying the appropriate interest rates, the amount of $2,853 is reached. The total of these figures is $7,550.

117 It is clear that the plaintiff has lost virtually all of the disputed claims in these proceedings. Accordingly I propose to order the plaintiff to pay the defendant’s costs.

118 I enter verdict and judgment for the plaintiff in the sum of $7,550. I order the plaintiff to pay the defendant’s costs of the proceeding.

APPENDIX A”


“SHORT AGREEMENT
“ 1. We the undersigned hereby agree to divide the award monies from the case of Franke v CIC Insurance (No.50448 of 1990) subject to A R Yates & Co costs.
2. The parties were involved in a Partnership which is now dissolved.
3. This partnership conducted the business of buying and selling ships and barges.

4 A dispute has arisen over the portions of each partners interest in the Partnership, and their share of the award monies of Item No. 1.

5. The parties have agreed to resolve this dispute and agree that this Agreement is the final solution to all rights and interest in that Partnership.
6. Each party agrees to relinquish all claims against the other parties.
7. The parties agree the monies will be divided subject to A R Yates & Co costs as follows:
Award $689.657.60
Mr F Franke $449,657.60
Mr M Rosser $210,000.00
8. Should the costs and disbursements vary from the estimated amount of $30,000.00 deducted from the Award. Then the increase or decrease will be apportioned on an equal basis.
9. Mr Rosser to have all rights and interests and liabilities in regards to D Hislop of (unreadable).
10. Mr F Franke to return Mr M Rosser’s personal items and equipment as agreed between the parties at a time and place agreed
(Signed) F. Franke (Signed) M. Rosser)


Dated this 12th day of August 1991 .
(Signed) M Gamble
Witness
M Gamble
Solicitor”
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