Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd - [2007] NSWSC 971

CITATION: Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd & Anor [2007] NSWSC 971

HEARING DATE(S): 12-13 June 2007

JUDGMENT DATE :
30 August 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: The plaintiff is to pay the defendants' costs of these proceedings on an ordinary (party-party) basis to 24 June 2006 and thereafter on an indemnity basis.

LEGISLATION CITED: Legal Profession Act
Supreme Court Act
Supreme Court Rules
Civil Procedure Act

CASES CITED: Brott v Maher [2004] VSCA 186

PARTIES: Scope Data Systems Pty Ltd (Plaintiff)
Agostini Jarrett Pty Ltd (1st Defendant)
Shauna Jarrett (2nd Defendant)

FILE NUMBER(S): SC 12191/04

COUNSEL: A.P. Lo Surdo/T.M. Mehigan (Plaintiff)
G. Curtin (Defendants)

SOLICITORS: Norman Waterhouse (Plaintiff)
Middletons (Defendants)

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HISLOP J

Thursday 30 August 2007

12191/04 Scope Data Systems Pty Limited v Agostini Jarrett Pty Limited & anor

JUDGMENT

1 HIS HONOUR: These proceedings were commenced by summons. The summons was subsequently amended. The plaintiff sought relief against its former solicitors essentially pursuant to s198M and s198N of the Legal Profession Act 1987, alternatively, pursuant to s76C of the Supreme Court Act, alternatively, pursuant to Pt 52A r 43(1) of the Supreme Court Rules, and also for breaches of contract and breach of fiduciary duty.

2 The proceedings were listed for hearing before me on 14 May 2007. On that occasion the plaintiff sought an adjournment as its counsel had withdrawn from the case for “professional reasons” at 8.00 pm on the previous Friday. The adjournment application, though opposed, was granted to enable new counsel to be briefed. With the agreement of all parties, a hearing date of 12 June 2007 was fixed.

3 On 12 June 2007 the matter again came on for hearing before me. The plaintiff sought a further adjournment and leave to amend the claim. The purpose of the adjournment was to enable the claim to be reformulated in a statement of claim as a claim for damages for professional negligence. It was suggested that other parties may be joined to the proceedings and that an application may be made for the proceedings to be heard with District Court proceedings brought by the plaintiff against other solicitors who had acted for it. The Court was informed the underlying facts to be relied upon in the reformulated case would be no different than in the claim as originally cast, save in relation to damages and, possibly, the qualification of an expert witness. The adjournment application was said to be made in consequence of the application of a fresh legal mind to the issues. The amendment was described as vital as, without it, there was a real prospect the plaintiff’s case would fail. The Court was informed that if the adjournment application failed, counsel for the plaintiff would be required to withdraw for ethical considerations but a director of the plaintiff would seek leave to conduct the hearing of the case…

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.

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Details

Case: [2007] NSWSC 971
Decision Date: 30 August 2007

CaseChat Overview and Summary

Scope Data Systems Pty Ltd sought relief against its former solicitors, Agostini Jarrett Pty Ltd, in the Supreme Court of Victoria. The plaintiff claimed damages for professional negligence, alternatively for relief against its former solicitors essentially pursuant to sections 198M and 198N of the Legal Profession Act 1987, alternatively pursuant to section 76C of the Supreme Court Act, alternatively pursuant to Part 52A rule 43(1) of the Supreme Court Rules, and also for breaches of contract and breach of fiduciary duty.

The court was required to determine whether the plaintiff's claims against the defendant solicitors were valid under the specified statutes and rules, as well as whether there were breaches of contract and fiduciary duties. This involved an examination of the professional conduct of the solicitors, the nature of their retainer with the plaintiff, and the existence of any contractual or fiduciary obligations.

The court found that the plaintiff's claims were not substantiated and dismissed all claims. The court held that the plaintiff had failed to provide sufficient evidence to support its allegations of professional negligence, breach of contract, and breach of fiduciary duty. Furthermore, the court determined that the plaintiff's claims under the specified statutory provisions were also unfounded. Consequently, the court ruled in favour of the defendant solicitors, dismissing all claims brought by the plaintiff.

The court ordered that the plaintiff pay the defendant's costs of the proceeding. This outcome was a result of the court's determination that the plaintiff's claims were without merit and did not warrant any relief or damages against the defendant solicitors.

Orders