JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 4 and 14 August 2023
DATE OF JUDGMENT:	11 April 2024
CASE MAY BE CITED AS:	Rowson v Alpass (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 169

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CONTRACT — Whether there was an oral agreement for the sale and purchase of the assets of a legal practice controlled by a Court appointed receiver — Masters v Cameron (1954) 91 CLR 353 and Citius Property Pty Ltd v Logos Australia Group Pty Ltd [2022] VSC 656 referred to — Whether the defendant’s conduct in not accepting or rejecting an offer to purchase the business, and his failure to disabuse the plaintiff of his mistaken assumption that the parties had entered a binding agreement, evidenced his acceptance of the plaintiff’s offer — Relevance of post-contractual conduct as to whether a contract was formed — Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274 referred to and applied — Held that there was no oral agreement for the sale and purchase of the business.

ESTOPPEL — Promissory estoppel — Whether the defendant was estopped from denying the sale and purchase of the assets of a legal practice of which he was appointed a receiver — Whether defendant’s conduct induced in the plaintiff a reasonable belief that an agreement had been reached — Held that conduct of defendant contributed to plaintiff’s assumption that they would be the purchaser, but there was no material detriment suffered by the plaintiff in reliance upon his mistaken assumption — Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, Sidhu v Van Dyke (2014) 251 CLR 505 and Pipikos v Trayans (2018) 265 CLR 522 referred to — Held that it was not unconscionable for the defendant to resile from giving effect to the plaintiff’s mistaken assumption — Held that there was no estoppel by convention as both parties did not act upon a mutually held assumption as to a matter of fact or legal effect.

LEGAL PRACTITIONERS — Receiver — Whether the defendant was immune from any liability to the plaintiff by reason of s 366 of the Legal Profession Uniform Law Act 2014 (Vic) (‘Uniform Law’) — Whether the defendant’s breach or repudiation of an agreement directly involved, or was merely incidental to, the exercise of his powers and functions under the Uniform Law — Rowson v Alpass (2017) 53 VR 196 and Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105, referred to — Held that the defendant’s conduct falls outside the scope of the immunity provision.

CAUSATION — Whether the plaintiff suffered a loss of opportunity by reason of the defendant’s alleged repudiation or breach of an agreement — Plaintiff’s standing to sue on the alleged repudiation or breach of contract — Whether,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowson v Alpass (No 2)

Details

AGLC: Rowson v Alpass (No 2) [2024] VSC 169
Case: [2024] VSC 169
Decision Date: 11 April 2024

CaseChat Overview and Summary

In the case of Rowson v Alpass (No 2), the plaintiff sought to enforce an alleged oral agreement for the sale and purchase of the assets of a legal practice controlled by the defendant, who was appointed as a Court receiver. The dispute was heard and determined in the Supreme Court of Victoria. The plaintiff claimed that the defendant's conduct amounted to acceptance of an offer to purchase the business and argued that promissory estoppel should apply, preventing the defendant from denying the agreement. Additionally, the plaintiff sought damages for the loss of opportunity resulting from the alleged repudiation of the agreement.

The central legal issues involved whether there was an enforceable oral agreement for the sale and purchase of the business, if promissory estoppel applied, and whether the defendant's conduct amounted to immunity under section 366 of the Legal Profession Uniform Law Act 2014 (Vic). The court also considered whether the plaintiff suffered a loss of opportunity and whether the damages claimed were quantifiable.

The court found that there was no enforceable oral agreement for the sale and purchase of the business. It held that the defendant's conduct did not amount to acceptance of the plaintiff's offer and that promissory estoppel did not apply as the plaintiff had not suffered a material detriment in reliance on his mistaken assumption. The court further held that the defendant's conduct did not fall within the immunity provision of section 366. Regarding causation, the court found that the plaintiff had not established a loss of opportunity due to the defendant's repudiation of the agreement and was not ready, willing, and able to perform his obligations under the agreement. Finally, the court held that if an actionable estoppel had been found, the equitable compensation would be limited to costs thrown away by the plaintiff.

The court dismissed the plaintiff's claims and made no orders for damages or other relief.

Orders