Anman Developments Pty Ltd v Bonutto & Ors [1992] QSC 20

TRANSCRIPT OF PROCEEDINGS S<..- qo/002-0 State Reporting Bureau, 4th F1oor, The Law Courts George Street, ' BRISBANE. 0. 4000 Tel. (07) .227.4360 (Copyright tn this transcript is vested in the Crown. Copies thereof must not be made. or sold without the written authority of the Director, State Repordng Bureau.) -----#--·-···-· · .: ........ --·--; il r1:=v:sr:?- cc:~.;:::.~·-··;: ~· .. .; .··. ~, \ c.c.,urt r·.t::p!~J:"::n~;:_ ~- .. ~ 1 .;;.::1. ... ! ' L oci:te, · /3 1 ~~ 1 _f_~_.l . -:·.'": :} ,.~--:_..(- ~, t~~:;:_ .. ·, ' SUPREME COURT OF QUEENSLAND ( ( ( \_ CHAMBERS WHITE M No 2044 of 1990 ANMAN DEVELOPMENTS PTY LTD and OSWALD PETER JAMES BONUTTO, WILLIAM ROBERT STUBBS, CARMEL MARTIN and ANTHONY JOHN MacDONALD trading as ELLIOTT STUBBS & BONUTTO BRISBANE .. DATE 30/01/92 JUDGMENT 1 Plaintiff· Defendants -- 1 of 6 -- ------------------,----~ J3 I 1092 JUDGMENT Mf-STER: This is an application for the_ joinder of two individuals, i ~r and Mrs Wade and, a- company,_ Seadust Pty Ltd, as p~aintiffs in C!l-n action commenced by Anman De,."':" '•1pments Pty 10 Lbd against the, named members of a firm of soL.:··.:itors. It opposed on the ground that the limitation period has pired with respect to the cause of action by the proposed plaintiffs against the defendant firm. 20 10 common ground that the cause of action accrued for the 20 laintiff and the proposed new plaintiffs on 21 December ]9841 the: da-te _ upoi} _ which a certain real property 1ransaction was concluded. The. facts are quite complicated and I do not propose to set them out in these reasons. Apart 30 Jrom one matter, the outline of facts handed up by fiss Kiefel QC for the applicant (which summarises .Mr Wade's long affidavit sufficiently) is agreed by Mr Keane (;!.':. for the do.L11dants. I will place lhat outline of facts on the file with these reason~ for decision. I 30 () \""_/ 0 40 () 50 60 I ·Mr Keane _QC, seriously disputes para 20 of that surrnnary of facts; namely thatj rr and,Mrs Wade's solicitors in December 1990 wrote to the l defenda~t_firm asking that firm to search for a copy of a larticular agreement. The outline states that there was no ~~eplyf but a~ affidayit filed on behalf of the respondents ·indicates that there was telephonic communication, probably at secretarial level, and there is no reason to dispute that on the material presently before me. GoV.t. Printer, Old·. 2 40 0 50 60 -- 2 of 6 -- ~3ri092 Shortly stated 1 the settlement of the property to which I I JUDGMENT I hfve referred 1 land held by the plaintiff company 1 was sold to a third party., A bill of encumbrance in favour of I M~ and Mrs Wade for $3 .1·111 was in place ·~"';.:hat time over land. Mr and Mrs Wade were trustees for a family trust- subsequently the proposed corporate plaintiff 1 Seadust Pty Ltd 1 was substituted as trustee. dn settlement, Mr Bonutto 1 a member of the defendant firm at (''o le time (who has not been served and for whom Mr Keane does , jot appear) arranged for the balance purchase price to be Jaid to the present plaintiff company and prepared a release df the bill of encumbrance for $1 without apparent c ( .I . instruct1ons or reference to Mr and Mrs Wade. i 30 1 I The debt by Anman Pty Ltd to Mr and Mrs Wade was thus ! I Ekxtinguished. Anman was assessed by the taxa:\,ion office for I . . tax on the transact1on 1n excess of $1 m.· It appears that II Mr and Mrs Wade took their affairs to another firm 1 Rogers I40 Matheson & Clark to deal with the taxation matter. As far I is appears from Mr Wade 1 s affidavit 1 no dispute had occurred I between the interests that he represents and the defendant i l firm. Negotiations took place between the Wades·and the tax I bffice through the offices of their then solicitors up until so ecember 1990. Rogers Matheson & Clark apparently advised r and Mrs Wade that the limitation period did not run until [the taxation office had made its final demand for taxation with respect to Anman's profits. ---" 6 = 0 --~-In--November_19_9_0...,_Mr:__a.n_!i_Mrs W?J.de received advice that they G 214-Govt. Printer, Old. 3 10 20 I 30 40 50 60 -- 3 of 6 -- ~-------,--~-.-- .. --.. I ! I ! )3?1092 I JUDGMENT h~d lost their rights against Anman when the bill of I - . encumbrance- was released. It seems, however, that this fact hld been known to Mr Wage for quite some time; see paras 45 I and 4 6 of hi...:._ ';:f idavi t. JO 20 The writ was issued on 20 December 1990, a day prior to the e,Lpiration of the limitation period, against the defendant ~irm. It was served nearly a year later. Its endorsement I :deads: "The plaintiff's"claim is for damages for negligence of the defendants at Brisbane in the State of Queensland on the 21st day of December 1984. 11 No statement of claim has been delivered. Accordingly, it I can be regarded as a somewhat d·elphic notice of the cause of I ~ction. 30 II The defendant firm returned its conveyancing file to Mr Wade 'I I • ' at h1s request ln'November 1991. In the course of that I request, Mr Wade made no mention to the firm of the fact of I the I issue bf the writ nearly a year earlier. After service of the writ on ! -\0 lO I I December 1991 Mr MacDonald, of the defendant firm, i Fequested I and:was given a photocopy of that i • f1le. Mr Bonutto 1. who largely handled the conveyance 1 had ! I • !left the f1rm completely by 1990 and it appears he no longer I . - rpract1ses law~ so 1 I • /Th1s application is based upon "special" or "peculiar" /circumstances- as considered and_enunciated in the Full i !court in' ~Lynch v. Keddell ( 1985) 2 QdR 103 and developed I . I !more fully-in Grotherr v Maritime T~mbers Ptv Ltd (1991) I _" ____ 60 I2_QdR_l~8~ the Full Court. I was pressed by Miss Kiefel, I G 214-Govt. Printer, Old. --------.....:: I 4 I I •J ~ I II I II II I II I I iO I I I I I I 20 (J 0 3(:: 0 0 50 to -- 4 of 6 -- ( ! Il i . I 13p:r:o92 JUDGMENT oh behalf of the applicants, that the special circumstances ake, in effect, that the defendant firm-is the correct and I . PFoper defendant; that the proceedings were commenced in I t 1 ime by _ existing plaintiff against the defendant;,_ and I 10 that the ·''tefendant firm is in the peculiar position of I. ~nowing all the facts and knowing about all the possible, I I · 'ff :Bla1.nt1. s. Numerous examples are given of what might be said to Jonstitute special or peculiar circumstances in Grotherr~.s I case by Lee J at pp 151-2. I Inadvertence or carelessness or ~egligence by a solicitor is not such a circumstance. The I licensed insurer example, referred to by Miss Kiefel, is not I l . . 't l.n my op1.n1.on appOSl. e. In those cases, and examples which ! 30 ~ere well canvassed in Grotherr's case, the potential action I I was a live issue being investigated by the true defendant, I ' hamely the licensed insurer. The fact that the defendant I !firm has a copy of an old inactive file, which might ( :contain all the necessary material maintainingthe·defence I I _, 0 )against the proposed new plaintiffs, does not seem to me to I ! :be a basis for depriving the defendant firm of its rights conferred by the Limitation of Actions Act. There .was !certainly nothing "timely" about the conduct of the I !applicants, vis-a-vis the defendant firm. Indeed, it wa~ to I so i the contrary. I f I In all the circumstances~ ··bearing in mind the authorities to I /which I was referred, I am unable to grant the application 1 I and, accordingly, dismiss th~ summons for joinder and,I i ----- 6,J l __ think.,as wg.s _ _e,_gJ;:_?ed,~_ costs I G 21 ·!-Gs•· ·'n11ter, Old. should follow .the event ! 5 10 20 30 50 -- 5 of 6 -- 1092 JUDGMENT --~-,--" • y-l ... ~~ ' that order. So I further order that the applicants pay e respondents' costs of and incidental to that summons to be taxed. 10 10 20 20 ~) 0 30 30 (J 40 40 ( ··., ~I 50 50 60 60 Govt. Printer, Old. 6 -- 6 of 6 --