Taret Pty Ltd v My Law Firm Pty Ltd
[2022] WASC 260
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TARET PTY LTD -v- MY LAW FIRM PTY LTD [2022] WASC 260
CORAM: MASTER SANDERSON
HEARD: 7 JUNE 2022
DELIVERED : 12 AUGUST 2022
PUBLISHED : 12 AUGUST 2022
FILE NO/S: CIV 1123 of 2021
BETWEEN: TARET PTY LTD
First named first plaintiff
IVO PAUL LETARI
Second named first plaintiff
JANE LETARI
Third named first plaintiff
AND
MY LAW FIRM PTY LTD
First Defendant
MAURIZIO ANTONIO OTERI
Second Defendant
ROBERTSON HAYLES LAWYERS PTY LTD
Third Defendant
Catchwords:
Practice & procedure - Application to strike out certain paragraphs of statement of claim on basis claim statute barred - Turn on own facts
Legislation:
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application to be dismissed
Category: B
Representation:
Counsel:
| First named first plaintiff | : | A Metaxas |
| Second named first plaintiff | : | A Metaxas |
| Third named first plaintiff | : | A Metaxas |
| First Defendant | : | D Bradley |
| Second Defendant | : | D Bradley |
| Third Defendant | : | DM Templeman |
Solicitors:
| First named first plaintiff | : | Metaxas Legal |
| Second named first plaintiff | : | Metaxas Legal |
| Third named first plaintiff | : | Metaxas Legal |
| First Defendant | : | Jackson McDonald |
| Second Defendant | : | Jackson McDonald |
| Third Defendant | : | Gilchrist Connell |
Case(s) referred to in decision(s):
Hawkins v Clayton (1988) 164 CLR 539
MASTER SANDERSON:
This is the third defendant's application to strike out the plaintiffs' claim against it on the basis that the action is statute barred. The third defendant relies on a number of different provisions in the Rules of the Supreme Court 1971 (WA) but no matter which rule is relied upon, the underlying legal principle remains the same. The third defendant must establish that on the pleaded case, the plaintiff cannot succeed because it is clear the third defendant has a limitation defence. In running its argument, the third defendant accepts it is only in the clearest cases that a plaintiff ought be put out of court because there is no prospect of the action succeeding based upon the provisions of the Limitation Act 2005 (WA).
The amended statement of claim (ASOC) on which the plaintiff relies is a lengthy, although not particularly complex document. It runs to 46 pages and over 200 paragraphs. Essentially, the plaintiff claims against the first and second defendant for negligence and breach of contract in relation to legal services they provided to the plaintiffs. The claim against the third defendant is a claim in negligence. The plaintiffs accept any claim in contract would be statute barred. The relevant facts can be summarised as follows.
As at November 2015, the plaintiffs were the registered proprietors of a property in East Cannington. At all material times Peter and Joseph Tilli were directors of two corporations, Developments (WA) Pty Ltd (DWA) and Canningvale Properties (WA) Pty Ltd (CVP). DWA was at all material times the registered proprietor of certain home units at Grey Street, Cannington. Two entities, Walthamstow Pty Ltd and Angas Securities Ltd, had registered mortgages over the Grey Street units. The issues that arise in this case relate to attempts by the Tillis through companies which they control to purchase the Cannington property.
After extensive negotiation the plaintiffs entered into a suite of agreements, the effect of which was they sold the Cannington property to CVP. The Cannington property was sold on vendor finance terms. The unpaid portion of the purchase price was payable by CVP to the plaintiffs on the second anniversary of settlement - 27 November 2017. The unpaid portion of the purchase price was secured by, amongst other things, guarantees from the Tillis. It is the plaintiffs' case the third defendant provided negligent advice in relation to the proposed sale. The plaintiffs plead had they been properly advised by the third defendant, they would not have entered into the sale.
The date of settlement of the transaction - 27 November 2015 - is all important. It is accepted by all parties that so far as any contract claim is concerned, it is the date of settlement which is relevant. Any cause of action in contract became statute barred on 26 November 2021. But that does not necessarily mean that an action in tort is statute barred. An action in tort accrues when loss is actually suffered. The rationale for the at principle is clear - damage is an essential element of a cause of action in tort and without damage there is no claim. Both counsel relied on a number of cases which make this point. It is enough if I refer to the well‑known decision in Hawkins v Clayton (1988) 164 CLR 539. The principles were not in dispute.
The third defendant says that the way in which the plaintiffs have pleaded their claim makes it clear the date they suffered loss was the date of settlement. In particular they refer to par 206 of the statement of claim. That paragraph pleads that but for the conduct of the third defendant 'the plaintiffs would have terminated the Contract and sold the Land to another party for its fair market value'. The third defendant says this clearly indicates that the plaintiffs plead the loss and damage occurred as at the date of settlement. Accordingly, the action is statute barred.
For their part, the plaintiffs say as at 27 November 2015, the plaintiffs had not suffered loss because the unpaid balance of the purchase price was not payable by the purchaser until 27 November 2017. As it happened, on 9 June 2017 the land was sold by the first mortgagee for $4,500,000. The proceeds of the sale were paid to the first mortgagee. As at 9 June 2017 each of CVP, Peter and Joseph Tilli became liable to pay the unpaid portion of the purchase price to the plaintiffs. On 21 September 2016 CVP was placed into administration. Three years later it was deregistered. On 6 August 2019, Joseph Tilli was declared bankrupt and on 24 September 2019, Peter followed Joseph into bankruptcy. Between 1 September 2017 and 18 February 2021 the Grey Street units were sold by the mortgagees and the proceeds of sale were paid to the mortgagees. The plaintiffs received nothing.
The plaintiffs contend that they suffered a loss when Peter Tilli became a bankrupt - that is on 24 September 2019. Up until that time, no obligations of CVP or the Tillis had crystalised. True it is the first mortgagee had sold the Cannington property. But the Cannington property did not represent at that time the rights and interests of the plaintiffs. Their position was secured by the contractual documents they entered into. Based upon those documents, they could not have moved against CVP or the Tillis until Peter Tilli became bankrupt.
In my view, the plaintiffs' position is arguable. It is not for me to finally determine any question of limitation on this application - unless of course I would determine the position was so clear the plaintiffs' claim could not succeed and the third defendant was entitled to judgment. But having determined the position is arguable it is a question for trial whether or not the limitation defence will succeed. After all a limitation defence must be pleaded - what the Limitation Act does is provide a party with a potential defence to a claim. It does not remove the court's jurisdiction and in the absence of a limitation plea in the defence, a court is justified in ignoring the issue. So having determined the plaintiffs' position is arguable, I need say no more on the issue.
The third defendant's application will be dismissed. If the parties cannot agree as to costs short submissions should be filed within seven days of the publication of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
12 AUGUST 2022
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