Ucchino v Oxygen Finance Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Ucchino & Ors v Oxygen Finance Pty Ltd & Ors [2013] QSC 187

PARTIES:

PAVI UCCHINO
(first plaintiff )
and
CHEETAH PROPERTIES PTY LTD
(second plaintiff)
and
ZORZAN 0001 PTY LTD
(third plaintiff)
and
ZORZAN 0004 PTY LTD
(fourth plaintiff)
v
OXYGEN FINANCE PTY LTD
(first defendant)
and
BUTTS & BARKLEY SOLICITORS
(second defendant)
and
JOHN ROWELL
(third defendant)

FILE NO/S:

9176 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

24 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2013

JUDGE:

Philippides J

ORDER:

Further submissions as to formal orders and costs

COUNSEL:

SJ Williams for the applicants

GR Coveney for the respondents

SOLICITORS:

McInnes Wilson for the applicants

HW Litigation for the respondents

The application by the second and third defendants

1. The second and third defendants apply pursuant to UCPR 670 for an order that the first and second plaintiffs pay security for the second and third defendants’ costs of and incidental to the proceedings, up to and including the first day of trial, in the amount of $500,000.

Background

1. The plaintiffs have brought proceedings against the defendants arising out of two short term loans obtained from the first defendant, a financier.  The second defendant is a firm of solicitors.  The third defendant is an employed solicitor of the second defendant.

1. The first plaintiff, Mr Ucchino (who currently resides in Papua New Guinea), is the sole director and shareholder of the second, third and fourth plaintiffs.  The third and fourth plaintiffs sought and were granted leave to withdraw.

1. As against the first defendant, the first and second plaintiffs seek relief in respect of various claims including, misleading and deceptive conduct; negligent or fraudulent misrepresentation; failing to properly exercise the power of sale; unconscionable conduct; and recovery of default interest which is claimed to be in the nature of a penalty.    

1. The plaintiffs sue the second and third defendants for damages for negligence and/or breach of contract in the sum of $5,293,853. The second and third defendants have denied liability to the plaintiffs’ claim.

1. As against the second and third defendants, the first and second plaintiffs allege breach of the retainer and/or negligence.  The crux of the claim against the second and third defendants is that they failed to advise the first and second plaintiffs of the nature and effect of an all charging provision contained in the loan documents.  

1. It is alleged that prior to executing the First Loan and the Second Loan, the first plaintiff sought advice from the second and third defendants.  It is alleged that the first plaintiff specifically instructed the second and third defendants that the First Loan and Second Loan should only be secured by 38 and 40 Ryans Road.  The First Loan and Second Loan both contained a term whereby the first plaintiff agreed to charge all of his and the second plaintiff’s property with the payment of any moneys owed to the first defendant. The first plaintiff alleges that…