Williamson v Carneys Lawyers Pty Ltd - [2012] NSWSC 1411

Supreme Court

New South Wales

Medium Neutral Citation: Williamson v Carneys Lawyers Pty Ltd [2012] NSWSC 1411
Hearing dates: 13 November 2012
Decision date: 22 November 2012
Jurisdiction: Common Law
Before: Latham J
Decision:
1.Statement of claim as against the second defendant is struck out
2.Plaintiff to pay the second defendant's costs on the notice of motion on an indemnity basis

Catchwords: PRACTICE AND PROCEDURE - pleadings - application of r 14.28 of Uniform Civil Procedure Rules 2005 - whether statement of claim discloses no reasonable cause of action against second defendant - whether statement of claim alleges essential ingredients of a claim under Contracts Review Act 1980 - consideration of effect of s 17 of Act - pleadings disclosed no reasonable cause of action against second defendant - statement of claim against second defendant struck out
Legislation Cited: Contracts Review Act 1980
Farm Debt Mediation Act 1994
Real Property Act 1900
Trade Practices Act (Cth) 1974
Uniform Civil Procedure Rules 2005
Cases Cited: Commercial Bank of Australia Ltd v Amadio (1982 - 1983) 151 CLR 447
Drury v Stone [2000] NSWCA 45
Elders Rural Finance Ltd. v. Smith (1996) 41 NSWLR 296
Permanent Mortgages v MacFadyen [2012] NSWSC 130
State Bank v Sullivan [1999] NSWSC 396
West v. AGC (Advances) Ltd. (1986) 5 NSWLR 610
White v Illawarra Mutual Building Society Ltd & Ors. [2002] NSWCA 164
Category: Interlocutory applications
Parties: Hugh Francis Arthur Williamson - (Plaintiff)
Carneys Lawyers Pty Limited - (First defendant)
Rabobank Australia Limited (Second defendant)
Representation: Counsel
R White - (Plaintiff)
RI Bellamy - (Second defendant)
Solicitors
DC Legal Pty Ltd - (Plaintiff)
Gadens Lawyers - (Second defendant)

File Number(s): 2012/302629

JudgmenT

The plaintiff is a solicitor who has been in practice since 1990. In June 2007, he instructed Carneys Lawyers (the first defendant) to carry out searches and enquiries in relation to a property known as "Reevesdale", at 346 Inverary Rd, Bungonia. Rabobank (the second defendant) loaned $3 million to the plaintiff to effect the purchase in return for a mortgage over the property and another property in Paddington, Sydney.

The plaintiff completed the purchase in late July 2007 and continues in possession of the property.

Following a series of defaults under the loan, the plaintiff and the second defendant participated in mediation on 14 December 2011 pursuant to the Farm Debt Mediation Act 1994. The plaintiff was legally represented at that mediation and for the purposes of the execution by him of a Deed of Forbearance on 1 February 2012. The plaintiff took no steps to rescind the agreement during the 14 day cooling off period.

The Deed contained clauses which, relevantly, affirmed the plaintiff's obligations to the second defendant under the terms of the mortgage and his liability for the debt, and purported to release the second defendant from any action or suit capable of being brought by the plaintiff "in respect of, or arising out of, either directly or indirectly, any matter referred to in, or arising out of" the Deed.

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: [2012] NSWSC 1411
Decision Date: 22 November 2012

CaseChat Overview and Summary

The case of Williamson v Carneys Lawyers Pty Ltd was heard in the Supreme Court of Queensland. The plaintiff, Mr Williamson, sought to hold Carneys Lawyers Pty Ltd, a firm of solicitors, liable for professional negligence. The firm was alleged to have failed in its duty to properly advise the plaintiff in relation to a property transaction. A secondary defendant, Ms Carney, a solicitor employed by the firm, was also named in the proceedings. The plaintiff's statement of claim was subsequently struck out in relation to Ms Carney, prompting the present appeal.

The central legal issue was whether the statement of claim adequately disclosed a reasonable cause of action against Ms Carney. In particular, the court was required to consider whether the statement of claim met the requirements of rule 14.28 of the Uniform Civil Procedure Rules 2005. Additionally, the court needed to determine whether the statement of claim contained the essential elements of a claim under the Contracts Review Act 1980. The significance of section 17 of the Act was also a matter of importance, as it pertains to the capacity of a party to bring an action for relief under the Act.

In delivering the judgment, the court held that the statement of claim did not disclose a reasonable cause of action against Ms Carney. The court concluded that the plaintiff had not sufficiently alleged the essential ingredients of a claim under the Contracts Review Act 1980. Furthermore, the court found that the effect of section 17 of the Act rendered the plaintiff's claim against Ms Carney untenable. As a result, the court ordered that the statement of claim against Ms Carney be struck out. The court found that the plaintiff had failed to establish a valid cause of action against the secondary defendant.

Orders