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Murdoch Lawyers Pty Ltd v Gouldson[2021] QSC 96

Reported at (2021) 7 QR 726

Murdoch Lawyers Pty Ltd v Gouldson[2021] QSC 96

Reported at (2021) 7 QR 726

SUPREME COURT OF QUEENSLAND

CITATION:

Murdoch Lawyers Pty Ltd & Ors v Gouldson & Anor [2021] QSC 96

PARTIES:

MURDOCH LAWYERS PTY LTD (ABN 88 414 087 798)

(first defendant/first applicant)

TONY PHILLIPS (ALSO KNOWN AS KEVIN PHILLIPS)

(second defendant/second applicant)

TIMOTHY NORTH

(third defendant/third applicant)

v

FARAN GOULDSON

(first plaintiff/first respondent) 

GOULDSON LEGAL PTY LTD (ABN 64 144 905 877)

(second plaintiff/second respondent)

FILE NO/S:

SC No 9259 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 January 2021

JUDGE:

Wilson J

ORDER:

  1. The applications are dismissed.
  2. The defendants pay the plaintiffs’ costs of and incidental to the applications, calculated on the standard basis unless one or more of the parties, by submissions in writing filed and served within seven days, contend for the making of a different order.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiffs did not serve the claim on the defendants within one year of filing – where the registrar granted an ex parte application to renew the claim pursuant to rule 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants filed an application to set aside the registrar’s order some fifteen months after being served – where the defendants requested extensions of time to file their defences, made detailed requests for further and better particulars, and applied to have the matter placed on the supervised case list – where the delay in service was to ensure there was a reasonable basis for the claim, but was not strictly necessary to ensure the claim could be properly pleaded – where the limitation periods probably expired between the date the claim was filed and the date of renewal – whether, in all of the circumstances, there was “another good reason” to renew the claim

Uniform Civil Procedure Rules 1999 (Qld) r 5, r 24(2), r 16(d), r 667(2)(a)

Babcock & Brown Pty Ltd v Anderson [2010] QSC 287

King & Ors v Gunthorpe & Ors [2018] QSC 1

McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203

Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513

Quinlivan v Konowalous & Ors [2019] QSC 285

The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148

COUNSEL:

K N Wilson QC for the first, second and third defendants

G Coveney for the first and second plaintiffs

SOLICITORS:

Barry Nilsson Lawyers for the first and second defendants

DLA Piper for the third defendant

HW Litigation for the first and second plaintiffs

Introduction

  1. [1]
    This is an application to set aside the decision of a registrar to renew a claim pursuant to rule 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”). Rule 24 states (relevantly):

24 Duration and renewal of claim

  1. (1)
    A claim remains in force for 1 year starting on the day it is filed.
  2. (2)
    If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.

....

  1. [2]
    Rule 24(2) permits the renewal of a claim in two circumstances:
    1. (a)
      when the registrar is satisfied that “reasonable efforts have been made to serve the defendant”; and 
    2. (b)
      when the registrar is satisfied that there is “another good reason to renew the claim”. 
  2. [3]
    It is the second limb of rule 24(2) that is relevant to this application.

Overview of the proceedings

  1. [4]
    The first and second plaintiffs filed a claim on 11 September 2017 (“the Claim”), seeking damages for professional negligence, breach of contract and breach of warranties under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“the ACL”) against:
    1. (a)
      Murdoch Lawyers Pty Ltd (“first defendant”);
    2. (b)
      Tony Phillips (also known as Kevin Phillips) (“second defendant”);
    3. (c)
      Timothy North (“third defendant”);
    4. (d)
      Mathew James Cherry (“fourth defendant”); and
    5. (e)
      Horizon Accounting Group Pty Ltd (“fifth defendant”). 
  2. [5]
    The first, second and third defendants are lawyers who represented the first plaintiff in previous family law proceedings. The fourth and fifth defendants are accountants who provided financial advice in relation to those proceedings.
  3. [6]
    The proceedings against the fourth and fifth defendants have been compromised and discontinued. However, the proceedings against the first, second and third defendants (together “the defendants”) remain on foot. 
  4. [7]
    The Claim was due to lapse on 11 September 2018 pursuant to rule 24(1) of the UCPR because the plaintiffs had failed to serve the defendants within twelve months of filing the Claim.
  5. [8]
    On 5 September 2018, to avoid the Claim lapsing, the plaintiffs applied to a registrar of the Court (“the Registrar”) for an order that the Claim to be renewed for twelve months pursuant to rule 24(2) of the UCPR. The application for renewal was made on an ex parte basis.
  6. [9]
    On 7 September 2018, the Registrar allowed the application and ordered that the Claim be renewed for a further period of 12 months, ending on 11 September 2019 (“the registrar’s order”). As no attempt had been made to serve the defendant, it was not relevant for the Registrar to consider whether “reasonable efforts” had been made to serve the defendant under the first limb of rule 24(2) of the UCPR. The question before the Registrar was whether, under the second limb of rule 24(2), there was “another good reason to renew the claim”. 
  1. [10]
    The first and second defendants were eventually served on 6 September 2019 and the third defendant was served on 9 September 2019.
  2. [11]
    Preparation for the proceedings then continued for just over one year, until 11 December 2020, when the defendants applied to have the registrar’s order set aside. The defendants also seek orders that the proceedings against the defendants be dismissed and that the plaintiffs pay the defendants’ costs. 

The issue in this application

  1. [12]
    There are three sources for the Court’s power to set aside the registrar’s order.
  2. [13]
    First, the order may be set aside pursuant to rule 16(d) of the UCPR, which permits the Court to “set aside an order extending the period of service for an originating process”. Second, the order may be set aside pursuant to rule 667(2)(a) of the UCPR, which permits the Court to “set aside an order at any time if the order was made in the absence of a party”. Third, the order may be set aside in exercise of the Court’s inherent jurisdiction.[1]
  3. [14]
    There are no express time limits within which an application pursuant to rule 16(d), rule 667(2)(a) or the Court’s inherent jurisdiction must be made.
  4. [15]
    The application to set aside the registrar’s order is not an appeal. Rather, it proceeds as a hearing de novo, and is to be determined upon a consideration of the whole of the material before the court.[2] The plaintiffs bear the onus of establishing that an order for renewal ought to have been made.[3]
  5. [16]
    The critical question in this application is therefore whether, upon consideration of all of the evidence before the Court, the plaintiffs have shown that there is “another good reason to renew the claim” within the meaning of rule 24(2) of the UCPR. Before considering this issue, it is necessary to outline the procedural and factual background to these proceedings in some detail. 

Procedural and Factual Background

  1. [17]
    The first plaintiff is the sole director of the second plaintiff, Gouldson Legal, which is an incorporated legal practice specialising in personal injury law.
  2. [18]
    In 2011, the first plaintiff and his ex-wife were involved in family law proceedings in the Federal Magistrates Court (now the Federal Circuit Court) concerning the division of their matrimonial property. The first and second defendants represented the first plaintiff in these proceedings. The first and second defendants briefed the third defendant to appear on behalf of the first plaintiff at the trial, which concluded on 9 September 2011.
  3. [19]
    Judgment was delivered on 18 March 2013. The effect of the orders was that the first plaintiff was required to transfer $524,104.99 to his ex-wife. So that the first plaintiff could comply with this order, the second plaintiff sold approximately $2,600,000.00 of work in progress (“WIP”), which it loaned to the first plaintiff.
  1. [20]
    On 24 October 2014, the first plaintiff sent an email to the first and second defendants, giving them notice that he was investigating a professional negligence claim against them for failing to provide specific advice as to a possible taxation exemption. The first plaintiff’s email stated:

I am presently seeking advice in relation to commencing a professional negligence claim against your firm, and against Horizon Accountants in connection with the advice provided over the course of my matrimonial matter, specifically as it relates to a failure to provide any advice or recommendation for specific advice in connection with an available taxation exemption under section 109J of the Tax Act in circumstances where the major asset in the pool was on any assessment the incorporated legal practice.

This failure has resulted in a lost opportunity to seek a private ruling from the ATO, and a lost opportunity to avoid a massive personal taxation liability in my personal name resulting from my sale of approximately $3,000,000 worth of files through the Company for the specific purpose of satisfying the Federal Magistrates Court judgment in favour of my ex-wife.

While this advice is being obtained and finalised I do not intend to settle your outstanding fees.

  1. [21]
    On 19 December 2014, the second defendant indicated that he intended to notify the first and second defendants’ insurer about these allegations.
  2. [22]
    In August 2015, the first plaintiff received advice from accountants as to the taxation implications of the sale of the WIP. The effect of this advice was the first plaintiff’s loan repayments would be offset against the dividends he received from the second plaintiff. However, he would be obliged to pay tax on the full amount of those dividends. As a result, the first plaintiff was required to make significant tax payments to the Australian Tax Office.

Preparation to file a claim: 5 October 2016 to 11 September 2017

  1. [23]
    The plaintiffs’ current solicitors received their initial instructions on or about 5 October 2016. The initial instructions were to investigate and, if so instructed, to commence proceedings against the defendants in respect of an alleged lack of taxation advice regarding the first plaintiff’s matrimonial proceedings.
  2. [24]
    Ms Cox, the plaintiffs’ solicitor, has sworn two affidavits on behalf of the plaintiffs. She was not cross-examined on these affidavits, and her evidence is unchallenged.
  3. [25]
    Ms Cox deposes that she formed the view that consideration needed to be given as to whether the plaintiffs had a cause of action, whether the plaintiffs had suffered loss, what that loss was, and whether expert reports as to liability and quantum should be obtained. In order to brief experts, Ms Cox considered that she needed further information, including all court documents, relevant correspondence, and financial and taxation documents.
  4. [26]
    On or about 27 January 2017, the plaintiffs’ solicitors received the files of the first and second defendants relating to the proceedings in the Federal Magistrates Court.
  5. [27]
    On 3 March 2017, Ms Cox requested instructions to engage experts.
  6. [28]
    On 28 March 2017, Ms Cox requested correspondence from the plaintiffs’ former accountants (originally, the fourth and fifth defendants). That material was provided on 26 April 2017.
  7. [29]
    In April 2017, Ms Cox commenced contacting potential legal experts. The chronology prepared by the plaintiffs’ solicitor indicates that Ms Cox engaged with a Susan Pearson in April and June of 2017:

CHRONOLOGY

 

DATE

ACTION TAKEN

...

  
  1.  

21.04.17

Katie email to Faran advising she has received and reviewed Travis Schultz’s file in relation to Faran’s previous retainer and assessing the preliminary feedback provided by Susan Person in respect of Faran’s potential claims and indicating that Katie would speak with her further and is expecting a call back.

  1.  

24.04.17

Faran email to Katie confirming that Susan Pearson appears to lack the requisite skills and experience to provide an expert’s report.

...

 

 

  1.  

01.06.17

Katie teleconference with Susan Pearson, confirming Ms Pearson has read the majority of the brief and foreshadowing a teleconference.  

  1.  

02.06.17

Katie review brief to Susan Pearson from previous solicitor following conference with Pearson.

  1.  

06.06.17

Katie reviewing Family Proceedings judgment in light of matters raised by Pearson.

  1.  

06.06.17

Katie and Martin teleconference with Faran seeking instructions following conference with Pearson.

...

 

 

  1. [30]
    There does not appear to be any further mention of Ms Pearson in the plaintiffs’ chronology, and the plaintiffs’ counsel states that there is no report from her. The identity of Ms Pearson was not disclosed by the plaintiffs.
  2. [31]
    Counsel for the defendants notes that an internet search reveals that  Susan Pearson, of Pearson Emmerson Family Lawyers, is an accredited specialist in family law, with over 35 years’ experience, and is acclaimed as one of Australia’s leading family lawyers. Counsel for the defendants submits that there is a strong inference Ms Cox sought advice from Ms Pearson in April and June of 2017.
  3. [32]
    That inference is consistent with Ms Cox’s evidence that, between April 2017 and February 2018, she attempted to contact approximately five solicitors and barristers specialising in family law for the purposes of obtaining a legal expert report. She deposes that she encountered difficulties retaining a suitable expert who was willing to provide an opinion as to the conduct of the first, second and third defendants. The lawyers she consulted generally advised that they were unable to provide a report due to conflicts or a desire to avoid drafting a report that might be used against a colleague.
  4. [33]
    On 22 August 2017, due to the possible expiry of a limitation period, Ms Cox received urgent instructions to proceed with preparing the Claim and a statement of claim (“the Statement of Claim”).  
  5. [34]
    On 7 September 2017, Ms Cox briefed counsel to urgently settle the Claim and Statement of Claim.

Claim filed but not served: 11 September 2017 – 4 September 2018

  1. [35]
    The Claim and Statement of Claim were filed on 11 September 2017. The Statement of Claim sets out:
    1. (a)
      the parties;
    2. (b)
      the family law proceedings;
    3. (c)
      the retainer with the first defendant;
    4. (d)
      the retainer with the third defendant;
    5. (e)
      the retainer with the fifth defendant;
    6. (f)
      implied terms and warranties;
    7. (g)
      the duty of care owed to the first plaintiff;
    8. (h)
      the duty of care owed to the second plaintiff;
    9. (i)
      the breaches;
    10. (j)
      the liability of second and fourth defendant;
    11. (k)
      vicarious liability; and
    12. (l)
      the loss and damage.
  2. [36]
    Ms Cox deposes that she was hesitant to serve the Claim and Statement of Claim because, in her view, the Statement of Claim was potentially deficient in a number of respects:

I was hesitant to serve the Claim on the defendants because I understood that the Statement of Claim, as it was then pleaded, was potentially deficient in a number of respects including in respect of the alleged duties of the defendants as owed to the plaintiffs and breaches of the same as well as a lack of particulars regarding the plaintiffs’ loss. As a result, I believed that the Statement of Claim:

  1. (a)
    was vulnerable to a strike-out action (in its then current form);
  2. (b)
    required substantial amendment (which has since been carried out); and
  3. (c)
    would incur unnecessary costs and result in otherwise avoidable delays for both the plaintiffs and defendants, if it was served at that time.

Accordingly, on the basis of the matters set out immediately above, I was instructed by the plaintiffs not to immediately serve the Claim but to continue my investigations to locate suitable experts to obtain a Legal Expert Report and an Accounting Expert Report so that the Statement of Claim could thereafter be amended and then served on the defendants.

Thereafter, HW continued to search for an appropriately qualified legal expert who was willing to provide an opinion on the required subject, and having been met with obstacles from practitioners in Queensland, New South Wales and Victoria, I searched for an expert in Western Australia.

  1. [37]
    In early February 2018, Ms Anderson, a barrister from Western Australia, was identified as an appropriate legal expert. She was retained on 2 March 2018.
  2. [38]
    Ms Cox had a number of conferences with Ms Anderson prior to Ms Anderson providing her report. In mid-April 2018, Ms Cox met with Ms Anderson and the first plaintiff. During this meeting, Ms Cox deposes that Ms Anderson:
    1. (a)
      confirmed her view that obtaining an accounting expert report would assist with properly pleading the plaintiffs’ claim and enabling the Court to determine the proceedings; and
    2. (b)
      suggested that an appropriate expert should also be retained to provide an opinion as to the likelihood of the plaintiffs obtaining a private ruling, as a necessary pre-condition to obtaining relief under section 109J of the Income Tax Assessment Act 1936 (Cth) (“Tax Act”), prior to the proceedings being advanced.
  3. [39]
    Ms Anderson provided her report on 8 May 2018. In this report, Ms Anderson identified the need to obtain a further expert opinion on the likelihood of obtaining a particular private ruling from the Australian Taxation Office, writing:
    1. There are a number of different parts to this matter requiring different areas of expertise.

....

  1. (e)
    If my opinion is that the defendants are negligent in not advising about S 109J, this is not the end of it, as advice would need to be obtained from a taxation expert that Mr Gouldson would have obtained a favourable private ruling from the ATO. A favourable ruling would be that if offered by the Family Court the company could transfer assets directly to the wife rather than declaring a dividend on which tax would be paid.

... 

  1. (g)
    Given that the tax payable would have been a liability reducing the asset pool and the sale of the WIP will reduce Mr Gouldson’s income, what would the outcome of the Family Court proceedings be? This question will need to be looked at once the financial advice is available.
  1. [40]
    On 30 July 2018, Ms Cox made enquires with Vincents Accountants (“Vincents”) regarding the possibility of obtaining an expert accounting report to quantify the plaintiffs’ alleged losses.  Ms Cox drafted a letter of instruction to Vincents in August 2018.

Application to renew claim: 5 September 2018 – 7 September 2018

  1. [41]
    The Claim was due to lapse on 11 September 2018.[4] However, Ms Cox formed the view that, in the absence of an accounting report, the Statement of Claim remained vulnerable to a strike out action and would require substantial amendment. She deposes that: 

As the 1-year anniversary of the filing of the Claim was approaching, I was conscious that the Claim would need to be renewed. Whilst, at this time, the plaintiffs had the benefit of the Anderson report, they did not have an Accounting Expert Report and they were not in a position to properly particularise their loss in a manner which complied with the requirements of the UCPR. As a result, I formed the view that the Claim, even if amended with the benefit of the Anderson Report:

  1. (a)
    was vulnerable to a strike-out action (in its then current form);
  2. (b)
    required substantial amendments (which have since been carried out); and
  3. (c)
    would incur unnecessary costs and result in otherwise avoidable delays for both the plaintiffs and defendants, if it was served at that time.
  1. [42]
    As a result, Ms Cox obtained instructions to prepare an application to renew the Claim pursuant to rule 24(2) of the UPCR.  The application was filed on 5 September 2018, and was accompanied by a short, ten-paragraph affidavit sworn by Ms Cox.
  2. [43]
    On 7 September 2018, the Registrar granted the renewal on an ex parte basis.

Preparations to serve defendants: 8 September 2018 – 9 September 2019

  1. [44]
    At the time of the renewal, the plaintiffs were experiencing cash flow issues, but by November 2018 they were in a position to fund the production of an accounting report. Instructions were provided to Vincents on 29 November 2018.
  2. [45]
    On 25 February 2019, Ms Cox received a draft accounting report from Mr Reynolds of Vincents. Ms Cox deposes that, between March and May of 2019, she attended a number of conferences between the plaintiffs, Mr Reynolds, the plaintiffs’ accountants and counsel for the purposes of providing further instructions and information in order to finalise the draft accounting report. She explained that “generally the further instructions and information supplied gave rise to further queries and comments, which lengthened this process considerably”.
  3. [46]
    After obtaining further instructions, Ms Cox received a second draft accounting report from Mr Reynolds on 21 May 2019. The second draft accounting report identified that further information was still required.  Some of that information was received from the plaintiffs’ accountant on 7 June 2019.
  4. [47]
    Between June 2019 and 31 August 2019, an amended statement of claim was prepared (“the Amended Statement of Claim”).  Ms Cox deposes that:
    1. From June 2019, I amended the Claim (in light of the Anderson and Second Draft Vincents Report), provided an updated brief to Counsel to settle the same and liaised with Counsel in respect of the proposed amendments to the Claim. As a result, further conferences with Counsel and/or the plaintiffs were required and held for the purposes of obtaining instructions, information and clarification of prior instructions, which in turn, raised still more matters to be investigated. 

Thereafter, various versions of a draft amended Claim were circulated between HW, Counsel and the plaintiffs and on about 31 August 2019 a final draft amended Claim was emailed by me to the first plaintiff for consideration.

On or about 5 September 2019, I received instructions from the plaintiffs to file the amended Claim (“the Amended Claim”) which I finalised and sent to HW’s Brisbane town agent that day to file with the Court.

In light of filing the Amended Claim and the substantial expert evidence obtained, notwithstanding that the Accounting Expert Report was still in draft and incomplete, I formed the view that it was appropriate to serve the defendants, because it appeared to me that the Amended Claim:

  1. (a)
    had sufficient particularity to no longer be vulnerable to a strike-out application;
  2. (b)
    no longer required substantial amendments, and any subsequent amendments were likely to be less substantial in nature; and
  3. (c)
    was less likely to result in unnecessary costs for both the plaintiffs and defendants if it was served.
  1. [48]
    The Amended Statement of Claim was filed on 5 September 2019.
  2. [49]
    On 6 September 2019, the first and second defendants were served via email with the Claim and Amended Statement of Claim. On 9 September 2019, the third defendant was personally served with the Claim and Amended Statement of Claim.

Conduct following service: 10 September 2019 – 11 December 2020

  1. [50]
    Preparations for the matter then continued for just over 15 months. The following table sets out a snapshot of the communication between the parties and steps taken to progress the matter between the date the defendants were served and the date of this application.

Date

Action Taken

16.09.19

The plaintiffs’ solicitors send Vincents further information from the plaintiffs’ accountants and request that they finalise their report.

27.09.19

Third defendant seeks an extension of time in which to file a defence.

30.09.19

The plaintiffs agree to the extension of time for third defendant to file a defence.

03.10.19

In response to a request by the third defendant, the plaintiffs provide a copy of the application to renew the claim dated 5 September 2018 and the supporting affidavit of Ms Cox.

14.10.19

The plaintiffs receive a finalised report from Vincents Accountants.

22.10.19

The third defendant seeking clarification about whether the plaintiffs’ intended to maintain claims against the defendant for breach of contract and breach of ACL guarantees given omissions in the Amended Statement of Claim.

24.10.19

The plaintiffs provide the final reports of Ms Anderson and Vincents Accountants to the defendants.

24.10.19

The fourth and fifth defendants serve a request for particulars.

29.10.19

The third defendants seek a response to their 22 October letter raising issues with the Amended Statement of Claim.

29.10.19

The plaintiffs write to the third defendant requesting a copy of their 22 October 2019 letter.

29.10.19

The first and second defendants propose that they serve their request for further and better particulars in respect of the Amended Statement of Claim by 4 November 2019, and time for filing of defence be extended to 14 days this.

29.10.19

The plaintiffs’ solicitors write to the first and second defendants agreeing to extension of time in which to file a defence.

04.11.19

The first and second defendants’ solicitors request particulars. Ms Cox deposes that the initial requests for particulars were extremely detailed, lengthy and complicated. She says that she informed the solicitors for the first and second defendants that she believed it would take significant time to formulate a draft response.

14.11.19

The plaintiffs respond to the third defendants’ letter dated 22 October 2019. They indicate that, despite inadvertent admissions in the Amended Statement of Claim, they intend to maintain an action for breach of contract and breach of ACL guarantees. They intend to file a further amended statement of claim to address these issues.

 

They also enclose copies of the requests for further and better particulars received from the other defendants, and request that the third defendant file any request for further and better particulars by 15 November 2019 so that the requests can be considered contemporaneously.

30.03.20

Solicitors for plaintiffs provide update by telephone to solicitors for third defendant.

01.04.20

The third defendant requests further and better particulars in respect of the Amended Statement of Claim.

22.04.20

The plaintiffs advise they are preparing response to third defendant’s request for particulars.

April 2020

Solicitors for the plaintiffs organise for the plaintiffs’ accountants to provide a report on the calculation of loss to assist with the preparation of an updated report by Vincents and address some of the issues raised in the requests for particulars.

22.05.20

Solicitors for third defendant enquire about when particulars will be provided.

21.08.20

The plaintiffs send the defendants a letter providing an update of the progress of their response to the requests for further and better particulars noting:

  1. (a)
    that the plaintiffs are liaising with their expert accountant with a view to potentially seeking an updated expert report from Vincents;
  2. (b)
    that the plaintiffs consider it efficient and appropriate to deliver an amended pleading, as opposed to separate responses to the defendants’ respective requests for particulars of the Amended Statement of Claim; and
  3. (c)
    that the plaintiffs expect they will be in a position to deliver the proposed further amended pleading within the coming month.

25.08.20

The first and second defendants advise the plaintiffs that, if the further amended statement of claim or response to the requests for particulars is not provided by 30 September, they will apply to have the matter listed on the supervised case list.

25.09.20

The plaintiffs write saying they expect to file amended pleading shortly. The plaintiffs clarify that they will not be in a position to file the further amended statement of claim until they receive an updated report from Vincents.

15.10.20

The third defendant seeks a timeframe for the delivery of the further amended statement of claim. The parties then corresponded about having the matter placed on the supervised case list.

10.11.20

Matter placed on supervised case list.

03.12.20

 

The defendants foreshadowed the application to set aside the Registrar’s decision to renew the claim.

11.12.20

The defendants file their application to set aside the order of the registrar made on 7 September 2018.

  1. [51]
    There were some additional delays in the preparation of the further amended statement of claim due to the COVID-19 pandemic and the need to adapt to work from home arrangements, as well as the death of the first plaintiffs’ adolescent son in May 2020. The plaintiffs’ solicitors did not press their clients for instructions for a short period due to this family tragedy, but were able to obtain instructions to progress the matter by July 2020.
  2. [52]
    I note, in particular, that the third defendant was first provided with a copy of the application to renew the claim on 3 October 2019. It is not clear when first and second defendants were first provided with these documents.
  3. [53]
    It is against this procedural and factual background that the defendants applied on 11 December 2020 to set aside the registrar’s order to renew the Claim.

Legal Framework

  1. [54]
    As outlined above, the critical question in this application is whether, upon consideration of all of the material before the Court, there is “another good reason to renew the claim” under rule 24(2) of the UCPR.
  1. [55]
    The principles relevant to this question were set out in 1999 by Pincus JA (with whom Davies JA agreed) in Muirhead v The Uniting Church in Australia Property Trust (Q) (“Muirhead”).[5] His Honour adopted principles set out by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK,[6] which he summarised as follows:
  1. (1)
    There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
  2. (2)
    The discretion may be exercised although the statutory limitation period has expired.
  3. (3)
    Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
  4. (4)
    There is a wide and unfettered discretion and there is "no better reason for granting relief than to see that justice is done".[7]
  1. [56]
    As to the first of the principles summarised by Pincus JA, it is now well-established that the discretion to renew must be exercised in the context of the UCPR as a whole, which includes rule 5:[8]

5 Philosophy—overriding obligations of parties and court

  1. (1)
    The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  2. (2)
    Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  3. (3)
    In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
  4. (4)
    The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
  1. [57]
    In The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission (“The IMB Group”),[9] Keane JA (as his Honour then was) stated:

[53] Rule 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs. A party who deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim.

[54] No case was cited to this Court in which r 24(2) or its analogues has been held to authorise a renewal of a claim in favour of a party who deliberately chooses not to serve a claim where the facts of the case sufficient to enable the case to be pleaded are known to the plaintiff. Whatever the position may have been in that regard in the absence of a provision such as r 5(3) of the UCPR, the presence of r 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court.

[55] In Major v Australian Sports Commission, it was accepted that a legitimate reason to defer service may arise where the imminent expiry of a limitation period necessitates the commencement of proceedings, but further investigation of the circumstances of the claim is necessary to be able properly to plead so that the action would not be vulnerable to a strike out application. That reason for delay is not available to the plaintiffs in this case. At no stage has it been suggested by the plaintiffs that they were unable to serve their claim until September 2004 because of the need for further investigation by them of its factual basis.

  1. [58]
    In Quinlivan v Konowalous & Ors (“Quinlivan”),[10] Davis J helpfully summarised the authorities dealing with the interaction between rule 24(2) and rule 5 of the UCPR:

[73] In McIntosh & Anor v Maitland & Ors, Jackson J, in setting aside a Registrar’s decision to renew a claim which was not served within a year of being issued, reviewed modern authorities decided after the introduction of rules like r 5 of the UCPR and then said this:

“In my view, it can no longer be said in this court that, in cognate branches of the procedural law, there is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. That would be inconsistent with a number of the statutory rules, concepts, principles and practices that are now recognised and incorporated into our modern laws of civil procedure.”

  1. [74]
    His Honour’s remarks are, with respect, well supported by statements of the High Court in Aon Risk Services Australia Limited v Australia National University and Batistatos v Roads and Traffic Authority (NSW). Recently, in UBS AG v Tyner, a case concerning a stay based on an abuse of process, Kiefel CJ, Bell and Keane JJ observed:

“It is to hark back to a time before this Court’s decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation.”

  1. [75]
    In the same case, Gordon J said:

“This appeal raises important issues about the way in which litigation is conducted in the 21st century. Over the last 20 years, there has been a ‘cultural shift’ in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes. Cost and delay are long-standing challenges. The courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law.” (citations omitted)

  1. [76]
    Rule 5 of the UCPR forms part of the statutory context against which the discretion conferred by r 24(2) is to be exercised.
  2. [77]
    Viewed against the implied undertaking of all parties, including the plaintiff, to proceed in an expeditious way, the taking of a deliberate and calculated decision not to serve the claim within the year period stipulated by the UCPR, is a significant consideration weighing against the renewal of the claim.
  1. [59]
    In McIntosh & Anor v Maitland & Ors (“McIntosh”),[11] Jackson J made several additional observations, which are apposite in this case.
  2. [60]
    First, his Honour discussed the significance of a limitation period having expired prior to an application for renewal being made. His Honour considered that: 

[36] ...[T]he expiry of the limitation period under a statute of limitations is an important circumstance when considering an application to renew a claim under r 24(2). That is because a plaintiff who starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right.[12]

  1. [61]
    Read together with the comments of Pincus JA in Muirhead, this passage suggests that the discretion to renew a claim may be exercised despite a statutory limitation period having expired. However, the expiry of a limitation period is a significant factor that counts against the exercise of the discretion, particularly where the parties do not proceed in an expeditious manner following its expiry.
  2. [62]
    Second, Jackson J held in McIntosh that the mere fact that a party will be denied the opportunity of pursuing an apparently worthwhile claim is not sufficient to constitute “another good reason” to renew a claim.[13] His Honour noted that this will be a feature of every case in which the limitation period has expired and recourse is had to rule 24(2) of the UCPR.[14] 
  3. [63]
    I note that Keane JA (as he then was) stated in The IMB Group that an application for renewal or an application to set aside a renewal is not an occasion for a determination of the merits of a claim. [15] Often, it will be difficult to come to a reliable view that a plaintiff’s claim is so strong that a serious injustice would result if was not allowed to proceed. That being said, in High Top Pty Ltd v Kay Sheila Lawrence t/a Kay Lawrence Accountancy,[16] McMurdo P held that an applicant with a claim “so strong that a serious injustice would result were it not allowed to proceed” and a “satisfactory explanation for the delay” will likely have demonstrated a “good reason” for renewal, absent some significant prejudice to the defendant. The strength of the plaintiffs’ case is therefore a relevant, but not determinative, consideration.[17]
  4. [64]
    Third, Jackson J observed that inability of the defendants to show that the renewal would result in any specific prejudice or detriment cannot, of itself, constitute a “good reason” to renew the claim.[18] The onus of proving that there is “another good reason” to renew the claim rests with the plaintiff.[19] His Honour also cautioned that, “it should not be assumed that the defendants are not prejudiced by the delay in their ability to respond to a claim about the quality of their advice on the ground that the plaintiff’s evidence in support of the claim will be largely documentary”.[20]
  5. [65]
    Fourth, Jackson J held that the inability of a plaintiff to formulate the precise loss suffered was not a sufficient reason to renew a claim. His Honour explained:

[75] The plaintiffs do not submit that they were unable to formulate their claims against the first, fourth or fifth defendants until the outcome of the voidable transaction proceedings was known. The amount of the plaintiff’s loss may have been affected by the outcome of the voidable transaction proceedings. However, that alone was not a sufficient reason, in my view, to justify the plaintiffs arrogating to themselves, in effect, the benefit of a stay of the present proceeding. The correct procedure would have been to serve the claim and to make an application for directions. The court has power to grant a stay or other relief if the ascertainment of loss in one case depends on the outcome of a case in another court. The defendants would have been entitled to be heard on any such application.[21]

  1. [66]
    In summary, the authorities reveal that the following factors are of particular relevance in deciding whether there is “another good reason” to renew a claim under rule 24(2) of the UCPR:
    1. (a)
      The reasons for the plaintiffs’ delay in serving the claim. In particular, whether they made a deliberate choice not to serve the claim, which counts strongly against renewal. The inability to precisely formulate the loss suffered is not, of itself, a “good reason” to renew a claim.
    2. (b)
      Whether the limitation period for any of the causes of action pleaded expired before the application to renew the claim. Expiry of the limitation period counts against renewal.
    3. (c)
      The strength of the plaintiffs’ case, although this factor is not determinative. 
    4. (d)
      Whether renewal of the claim would cause prejudice to the defendant. Proof of prejudice will count against renewal but the defendant does not bear the onus of proving that renewal would prejudice them.
  2. [67]
    This is not, however, an exhaustive list. The discretion to renew a claim is a wide one, informed in particular by the philosophy of the UCPR set out in rule 5. The relevant circumstances and considerations will vary according to the facts of each case. 

The Parties’ Submissions 

  1. [68]
    The parties’ provided detailed submissions about whether there was “another good reason” to renew the claim. These may be summarised as follows.
  2. [69]
    The plaintiffs accept that they bear the onus of proof, and make the following submissions as to why there is “another good reason” to renew the claim: 
    1. (a)
      The plaintiffs did not make a deliberate choice not to serve the claim within twelve months. They were unable to serve the claim within twelve months of filing because they required further expert evidence to ascertain whether there was a reasonable basis for bringing the proceedings and to ensure the Claim was not vulnerable to a strike out application.
    2. (b)
      The reasons advanced for not serving the claim do not lack merit. The ability of the plaintiffs to proceed was dependent on the successful gathering of a considerable body of information and documents, as well as the receipt of the expert reports.
    3. (c)
      The plaintiffs have proceeded expeditiously. Before serving the claim, their solicitors took appropriate steps to investigate whether the claim was a viable one. Since serving the claim, the plaintiffs have taken appropriate steps to answer extensive requests for further and better particulars from the defendants, agreed to extensions of time for the filing of defences, and consented to the matter being placed on the supervised case list.
    4. (d)
      The plaintiffs’ disclosure in the ex parte application, whilst lacking detail, did not mislead or omit relevant facts.
    5. (e)
      The plaintiffs do not accept that the limitation periods for the causes of actions pleaded expired before the Claim was renewed.  In any event, the plaintiffs submit that the present application is not an appropriate forum to finally determine contested limitation issues.
    6. (f)
      The defendants do not make any specific complaint that they have suffered, or are likely to suffer, prejudice from the passage of time that is likely to affect their ability to fairly defend the proceedings. The first and second defendants have had notice of a potential claim since receiving an email from the first plaintiff in October 2014.
  3. [70]
    In addition, the plaintiffs submit that the defendants did not bring the present application promptly. They submit that this weighs against the exercises of the Court’s discretion to set aside the registrar’s order.
  4. [71]
    The defendants submit that the claim ought not to have been renewed and the Registrar’s Order should be set aside for five reasons.  In summary, these five reasons are:
    1. (a)
      The plaintiffs made the conscious and deliberate decision not to serve the Claim within twelve months. They did so in the hope of securing favourable expert evidence, and not because there were material facts unknown to them. This weighs heavily against renewing the Claim.
    2. (b)
      The explanation for the plaintiffs’ delay in serving the Claim lacks merit. The pleadings were not substantially amended following the receipt of expert evidence and any amendments that were made did not require the expert evidence.
    3. (c)
      The plaintiffs have not adequately explained their delay, either before the application for renewal was made or since the Claim has been served on the defendants. The plaintiffs have breached their implied undertaking to proceed expeditiously under rule 5(3) of the UCPR.
    4. (d)
      The plaintiffs and their solicitors did not make full and fair disclosure during the ex parte renewal application before the Registrar.
    5. (e)
      The limitation periods for the plaintiffs’ causes of action had expired before the ex parte renewal was made by the Registrar. This counts against renewal. 
  5. [72]
    These five reasons form the backbone of their ultimate submission that the order of the registrar to renew the claim should be set aside and the action against the defendants be dismissed.

“Another Good Reason” to Renew the Claim?

Explanation for the plaintiffs’ delay in serving the Claim 

  1. [73]
    The plaintiffs submit that the cases distinguish between “calculated inactivity” or “deliberate choice”,[22] and other situations where expeditious investigations are undertaken to determine whether the claim is a viable one, even where those investigations take a significant amount of time.[23] The former is generally not excusable but the latter may be excusable.
  2. [74]
    The plaintiffs submit that they did not make a deliberate choice not to serve the claim within twelve months. Instead, the plaintiffs were unable to serve the claim within twelve months of filing because they required further expert evidence in order to ascertain whether there was a reasonable basis for bringing the proceedings and to ensure the Claim was not vulnerable to a strike out application.
  3. [75]
    That process necessitated obtaining an expert legal opinion as to the conduct of other legal practitioners.  There was a good deal of reluctance to provide such an opinion, which led to Ms Anderson of counsel from Western Australia being engaged to perform the task.  The resulting report, in turn, raised the need to obtain an expert accounting report and a further report by a legal expert as to the likelihood of a favourable private ruling being obtained from the Australian Taxation Office. Similarly, the accounting report involved complex calculations regarding an alternative taxation outcome if, hypothetically, different orders had been made in the matrimonial proceedings and the private ruling obtained. The viability of the proceedings was not clarified in the mind of Ms Cox until receipt of the second accounting report and the amendment of the Statement of Claim.
  4. [76]
    The defendants reject this explanation for the plaintiffs’ failure to serve the Claim within twelve months of filing. The defendants stress that there was no need, in deciding whether to serve a claim, for the plaintiffs to be certain of their prospects of success. There is, they submit, a material difference between being able to plead a cause of action and having the evidence to enhance the prospects of proving the pleaded cause of action. The defendants submit that the plaintiffs cannot point to any material facts that were unknown to them when the Claim was due to expire in September 2018.
  5. [77]
    In particular, the defendants submit that there has been no substantial amendment to the pleadings since expert evidence was obtained:

MR WILSON:   My learned friend has tried very hard to make this sound complicated but it’s not.  The only question that your Honour has to answer is whether there’s good reason to renew the claim, which put in practical terms, is, “Has a good reason been given for not serving a statement of claim prior to the 7th of September 2018,” and the short answer to that is no.  The short answer is, “Is there anything that the plaintiffs didn’t know beyond the quantification of their loss before that date,” and the answer is no.  The concern or hesitation, as it’s put, of the plaintiff’s solicitor – it’s not the test.  The test is as explained by the Justice Keane and others, does the plaintiff know enough to formulate its claim?  If it does, it should serve it.  And your Honour’s looked at it, no doubt will look at it again, the statement of claim and the amendments that were made.  Nothing in those amendments couldn’t have been said at the original time.  Nothing in those amendments required expert evidence other than the dollar figures in paragraph 45.[24]

  1. [78]
    Paragraph 34 of the Amended Statement of Claim provides, relevantly:
  1. Each of the defendants:
    1. 34.1. failed to advise the plaintiffs that an application ought be made to join the second plaintiff as a party to the Family Law Proceedings;
    2. 34.2. failed to advise the plaintiffs to seek orders in the Family Law Proceedings that any amount payable by the first plaintiff to the Wife pursuant to any judgment be paid by the second plaintiff;
    3. 34.3. failed to adduce evidence to the Court to prove that, in the event that the first plaintiff was ordered to make a cash payment to the Wife, that such payment could only be made by the second plaintiff;
    4. 34.4. failed to adduce evidence to the Court to prove that, in the event that the first plaintiff was ordered to transfer the Hamilton Property to the Wife unencumbered, the second plaintiff would need to sell assets to reduce loans it had with the CBA that were secured against that property;
    5. 34.5. failed to adduce evidence to the Court to prove that, in the event that the first plaintiff was ordered to make a significant cash payment to the Wife and/or was required to transfer the Hamilton Property to the Wife unencumbered, and the second plaintiff was required to sell assets to give effect to such orders:
      1. 34.5.1. the second plaintiff would incur a significant taxation liability;
      2. 34.5.2. the sale of any assets of the second plaintiff would impact on the first plaintiff’s future income.

....

  1. [79]
    I note that the two further breaches pleaded in subparagraphs 34.4 and 34.5 of the Amended Statement of Claim are of the same type as the breach already pleaded in paragraph 34.3. The subject matter of these paragraphs did not require expert evidence and was within the knowledge of the plaintiffs from prior to the application to renew the Claim.  
  2. [80]
    The other major amendment in the Amended Statement of Claim was the insertion of paragraph 34A, which deals with what a reasonable person in the defendants’ position would have done. It provides:

34A. A reasonable person in the position of each of the defendants would have:

34A.1 advised the plaintiffs that an application ought to be made to join the second plaintiff as a party to the Family Law Proceedings;

34A.2 advised the plaintiffs to seek orders in the Family Law Proceedings that any amount payable by the first plaintiff to the Wife pursuant to any judgment be paid by the second plaintiff;

34A.3 adduced evidence to the Court to prove that, in the event that the first plaintiff was ordered to make a cash payment to the Wife, that such payment could only be made by the second plaintiff;

34A.4. adduced evidence to the Court to prove that, in the event that the first plaintiff was ordered to transfer the Hamilton Property to the Wife unencumbered, the second plaintiff would be required to sell assets to do so to reduce its loans with the CBA which were secured against that property;

34A.5 adduced evidence to the Court to prove that, in the event that the plaintiff was ordered to make a significant cash payment to the Wife and/or transfer the Hamilton Property to her unencumbered, and the second plaintiff was required to sell assets:

34A.5.1 the second plaintiff would incur a significant taxation liability;

34A.5.2   the sale of any assets by the second plaintiff would impact on the first plaintiff’s future income;

34A.6 advised the plaintiffs as to the existence of section 109J of the ITAA;

34A.7 advised the plaintiffs that they had a right to apply to the Australian Tax Office for a private ruling that any payment by the second plaintiff to satisfy any order for a cash payment to the Wife be exempt from tax liability pursuant to section 109J of the ITAA;

34A.8 advised the plaintiffs make such an application; and

34A.9 advised the plaintiffs to seek specific separate advice about the matters pleaded in 34A.1 to 34A.6.

  1. [81]
    Paragraph 34A merely mirrors the breaches pleaded in paragraph 34. It was not necessary for the plaintiffs’ solicitors to obtain expert evidence in order to make these amendments.
  2. [82]
    In addition, there were minor amendments in paragraph 36 (which deals with what the plaintiff would have done “but for” the breaches pleaded in paragraph 34) and paragraph 37 (which deals with causation) of the Amended Statement of Claim. Having regard to what was already pleaded, the amendments to paragraphs 36 and 37 did not require further enquiries or expert evidence before they could be pleaded.
  3. [83]
    Paragraph 45 of the Amended Statement of Claim substantially amends the loss and damages claimed by the plaintiff: 

In the premises, the first and second plaintiffs have suffered loss and damage in the amount of their taxation liabilities which would otherwise have been avoided or reduced if the Breaches did not occur.  The best current estimate that the plaintiffs can provide of the loss and damage is as follows:

Description of damage

Amount

Additional tax liability of the first plaintiff to 30 June 2021

$795,858.37

Additional tax liability of the second plaintiff to 30 June 2021

$417,496.57

Total

$1,213,354.94

  1. [84]
    The insertion of an estimate of the loss and damage suffered in paragraph 34A is a significant amendment. 
  2. [85]
    However, as Jackson J explained in McIntosh, the inability to quantify damages is not a good reason for renewing a claim.[25] Although the amount of the plaintiffs’ loss may have been difficult to quantify without expert evidence, the plaintiffs could have served the claim and made an application for directions. The Court could then have granted a stay or other relief until expert evidence about the quantity of damages could be adduced.
  3. [86]
    I note the plaintiffs’ submission that it was only after investigations were undertaken that the plaintiffs were confident to serve the Claim:

HER HONOUR: I think the point that Mr Wilson was making is that 34A really doesn’t – it’s nothing new. It’s not new information that you’ve come – that you’ve had to undertake investigations or inquiries about. It really is a repeat – well, it is a repeat of 34. It may be a failure of pleadings, which has been cured by the insertion of 34A but 34 has, I think, nine breaches and only three of those were added as part of the amended pleadings.

MR COVENEY: That’s right. The amended pleading shows – you know, it obviously highlights by way of underlining where the changes have been made.

HER HONOUR: And his point is – look, you know, you had the pleading ready to go and so why did you sit on it for so long? And there’s a consequence for doing so. That’s his point. That it – that’s your point, isn’t it, Mr Wilson? Like, you had all this time and you say you did all these investigations but, really, it’s – it has come to, really, nought.

MR WILSON: Yes. I think Justice Jackson probably put it most succinctly... Serve it. Serve it. And if you need to fix it up, fix it up.

MR COVENEY: That’s not the test that was postured over by Justice Keane in IMB. The, “serve it and serve it now and fix it up later”, works when you, in fact, have formulated a sustainable cause of action. But not where those investigations are continuing as to whether, indeed, you have one or not.

HER HONOUR: So what you say, “Look, that was our best effort at the time and, lucky enough, it turned out to be pretty well right.”

MR COVENEY: Yes.

HER HONOUR: “After we got the evidence to be able to say, ‘Yes, we’re confident now to be able to serve it’”

MR COVENEY: Yes.  And that’s consistent with Ms Cox’s evidence where she says – before filing the initial one, that it was put in and – sorry, I’ll come back to this – but it was put in and she was concerned that it was going to be liable to be struck out.  And I would suggest that without those 34A and 37A, she’s quite right:  it would have been.  And for various other reasons.  The damages weren’t at all particularised there and that’s without a proper pleading of damage that the cause of action’s incomplete.  But yes – yes – what your Honour says is, indeed, correct, in my submission.  So – and there’s a difference – there’s therefore a difference in the types of cases that Justice Jackson was dealing with in McIntosh and the case that Justice Davis was dealing with in [Quinlivan] which was a case last year.[26]

  1. [87]
    I accept Ms Cox’s evidence that she was not confident in the merits of the claim until after the additional expert evidence had been obtained and the Amended Statement of Claim drafted. This evidence has not been contested.
  2. [88]
    In King v Gunthorpe (“King”),[27] Burns J considered a decision to renew a claim in circumstances where the plaintiff required further evidence to be satisfied that there was an adequate basis for the claim, but there was no suggestion that this further evidence was necessary in order to adequately plead the case.  His Honour Justice Burns observed:

[85] ...There was never any suggestion that either pleading failed to disclose an arguable cause of action, so the delay in service of the claim was never necessary to enable the plaintiffs to comply with the UCPR....

  1. [89]
    Despite this, Burns J held that the plaintiffs had shown “another good reason to renew the claim”.[28] In coming to this conclusion, his Honour emphasised the following circumstances:

[88]   The premise for the remarks made by both justices was an established breach by the party seeking renewal of their implied undertaking to the court and the other parties to “proceed in an expeditious way”, but the same premise is not present here. To the contrary, as appears from the steps that were taken over the period in question which I earlier summarised at some length (at [17]–[58]), the plaintiffs did proceed in an expeditious way. The investigation undertaken by the plaintiffs’ solicitors to determine whether the claim was a viable one was by no means straight-forward. Mr King had no direct knowledge of, or involvement with, his father’s financial affairs prior to his death and the same may be said of Mrs King. Mr King was particularly reliant on Mr McCormack and Mr Nutter to meet his solicitors’ requests for relevant information and documents and, then, on Mr Green as well as the counsel retained by his solicitors to come to a concluded view about prospects. That all took some time and, although some steps along the way might have been taken more quickly, and some may have been strictly unnecessary, my overall impression of this case is not one of “calculated inactivity”, to borrow a phrase from Byrne J in MacDonnell v Rolley. Nor is this a case where a deliberate choice was made not to serve the claim, such as was seen to have been made by the plaintiffs in The IMB Group, the investment group in Babcock & Brown and the trustees in McIntosh. In the first place, the plaintiffs here at all times acted in accordance with the legal advice that was provided to them and, secondly, the pace at which the plaintiffs were able to proceed was dependent on the successful gathering of a considerable body of information and documents as well as the receipt of the opinions to which I have referred. Once the long-awaited, and pursued, opinions from Mr Green were received on 28 July 2016, the revised claim and statement of claim that had been finalised on the previous day was promptly filed and served. As it was, that all occurred within four months of the claim becoming stale and within one month of the claim being renewed. As Keane JA said in The IMB Group, r 24 UCPR “facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs”. I think that is the position here; the claim became stale through no fault of the plaintiffs. (emphasis added)

  1. [90]
    I note that his Honour’s comment that “the pace at which the plaintiffs were able to proceed was dependent on the successful gathering of a considerable body of information”, must be viewed in the context of his earlier statement that there was no suggestion that the further information was necessary for the plaintiff to properly plead its case. 
  2. [91]
    His Honour went on to explain how his decision was consistent with Keane JA’s statement in The IMB Group that a party who “deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim”. His Honour explained: 

[89] Furthermore, I do not understand from what Keane JA otherwise said in The IMB Group that his Honour was laying down a prescriptive test. Although his Honour observed that it had been accepted in Major v Australian Sports Commission to be a “legitimate reason” to defer service where “the imminent expiry of a limitation period necessitates the commencement of proceedings, but further investigation of the circumstances of the claim is necessary to be able to properly plead so that the action would not be vulnerable to a strike out application”, his Honour did not hold that the only good reason for the renewal of a claim is that the delay in question had come about because of the need for the claim to be properly pleaded. Rule 24 of course does not say that. Instead, what the court must determine is whether there is “good reason” for the renewal and, given what has been said by Keane JA in The IMB Group and White JA in Hightop (and further explained by Jackson J in McIntosh), the court’s assessment will be vitally concerned with the extent to which the plaintiff has complied with the implied obligation to proceed in an expeditious way.[29] (emphasis added)

  1. [92]
    The circumstances of the present case are analogous to those in King. Although the additional evidence gathered by the plaintiffs did not prove to be necessary to ensure the pleadings would not be struck out, the plaintiffs appear, at all times, to have acted in accordance with legal advice from their solicitors and Ms Cox.
  2. [93]
    In turn, Ms Cox acted in accordance with expert advice, in particular from Ms Anderson (the barrister from Western Australia). The unchallenged evidence is that Ms Anderson advised Ms Cox to obtain further expert evidence from a taxation expert about the likelihood that the respondent would have obtained a favourable private ruling from the Australian Taxation Office and the impact that this would have had on the family law proceedings. Upon receiving this advice, I am satisfied that Ms Cox acted with reasonable expedition to obtain the further expert evidence required.
  3. [94]
    The unchallenged evidence is that Ms Cox faced initial difficulty in finding a suitable legal expert who was prepared to provide an opinion about the competence of the conduct of a fellow legal practitioner. There was also some delay in obtaining expert taxation evidence due to the complexity of the matter, the COVID-19 pandemic, and the plaintiffs’ cash flow issues and family tragedy.
  4. [95]
    In this case, as in King, my overall impression is not one of “calculated inactivity” or “deliberate choice” to refrain from serving the application in the hope of obtaining supportive expert evidence. Ms Cox and the plaintiffs at all times proceeded on expert advice that they required further expert evidence in order to determine whether the Claim had merit. It was understandable, in the circumstances set out in Ms Cox’s affidavits, that the plaintiffs delayed service until further expert evidence had been obtained, even if this did not prove to be necessary for the amendments that were subsequently made to the Statement of Claim.

Plaintiffs’ disclosure in the ex parte hearing

  1. [96]
    It is uncontentious that, in an ex parte application, parties and their lawyers owe a duty of candour and are required to make full and fair disclosure of all the material facts.[30] A failure to do so will give rise to a discretion to set aside the order, and a court will be astute to ensure that a party who obtains an ex parte order is deprived of any advantage he may have otherwise have derived from the breach of duty.[31]
  2. [97]
    The defendants submit that the first plaintiff and his solicitors did not make full and fair disclosure either during the ex parte application for renewal before the Registrar. The evidence before the Registrar consisted of a short, ten-paragraph affidavit by Ms Cox sworn on 4 September 2018. Ms Cox’s affidavit provides, relevantly:

...

  1. Our office was instructed by the plaintiffs to commence proceedings against the defendants in or about August 2017. 
  2. A claim was prepared against the defendants on an urgent basis in order to avoid the expiry of time limitations imposed on the plaintiffs by the Limitations of Actions Act 1974 (Qld). 
  3. In accordance with the plaintiffs’ instructions, our office prepared a claim and statement of claim which were filed with the Court on 11 September 2017. 
  4. Upon the preparation of the claim and statement of claim, it became evident that further evidence would need to be obtained by the plaintiffs from various experts. 
  5. There was insufficient time to obtain the necessary expert reports prior to the urgent filing of the claim and statement of claim on 11 September 2017.
  6. Since the filing of the claim and statement of claim, our office has, on instruction from the plaintiffs, been corresponding with various experts to obtain the required evidence which has taken longer than expected due to difficulties in finding appropriate experts. 
  7. We anticipate receiving further expert reports and other documents in support of the plaintiffs’ claim in the near future.  It is anticipated that, upon review and examination of the expert reports and those documents, amendments will need to be made to the statement of claim.
  8. In light of the ongoing investigations required, the plaintiffs have not yet attended to serving the claim on the defendants, however, anticipate being in a position to do so after the receipt of further expert evidence. 

...

  1. [98]
    The defendants point to the following deficiencies in this affidavit:
    1. (a)
      In paragraph 2 of her affidavit, Ms Cox deposed that the plaintiffs’ solicitors were instructed to commence proceedings in or about August 2017. She failed to mention that her firm had first been engaged by the plaintiffs to investigate the possibility of commencing proceedings in 5 October 2016.
    2. (b)
      The affidavit fails to mention that the plaintiffs had previously engaged at least one other firm of solicitors. The affidavit does not make clear whether this previous firm of solicitors was the source of the advice the first plaintiff said that he was seeking in his email of 24 October 2014.
    3. (c)
      Paragraph 5 of Ms Cox’s affidavit conveyed the impression that expert evidence had not been sought. Similarly, paragraph 7 of that affidavit said that there had been difficulties in finding appropriate experts.

However, in the plaintiffs’ material, reference is made to a brief to Ms Pearson in mid-2017, who had provided feedback on potential claims and raised matters for discussion. Neither the first plaintiff nor Ms Cox has explained who Ms Pearson is, or what advice she was asked to provide.

  1. (d)
    In addition, the affidavit fails to disclose that the expert report from Ms Anderson had been received on 8 May 2018.
  2. (e)
    The affidavit does not disclose that, by September 2017, the plaintiffs’ solicitor was able to formulate a draft of the estimated tax consequences arising on the sale of the WIP.
  1. [99]
    The defendants submit that these deficiencies in Ms Cox’s affidavit of 4 September 2018 mean that the plaintiffs’ disclosure in the ex parte application was not full and fair. Further, the defendants submit that the plaintiffs have still not addressed the matters identified in subparagraphs (b), (c) and (e) in their affidavit materials, which should be of concern to the Court.
  2. [100]
    In response, the plaintiffs submit that Ms Cox’s affidavit of 4 September 2018, whilst scant in detail, did not mislead or omit relevant facts and did not demonstrate a lack of candour.
  3. [101]
    I accept the plaintiffs’ submissions. In the circumstances of this case, which have now been set out in full Ms Cox’s second affidavit, Ms Cox’ first affidavit, whilst short, did not mislead or omit relevant facts and did not demonstrate a lack of candour.

Limitation period

  1. [102]
    As Jackson J outlined McIntosh, the question of whether a limitation period has expired before a claim is renewed is relevant to the assessment of whether there is “another good reason” to renew a claim.[32]
  2. [103]
    In this case, the defendants submit that the limitation period for each of the pleaded causes of action expired before the claim was renewed, and that this is a factor which weighs against renewal. The defendant submits that each of the pleaded breaches of contract and of the ACL must have occurred before the conclusion of the trial in the Federal Magistrates Court on 9 September 2011 or, at the very latest, by 16 August 2012, when the first and second defendants (who had engaged the third defendant) withdrew as the first plaintiff’s lawyers on the record. In addition, by these dates the plaintiffs had suffered loss as they had been deprived of the opportunity to avoid the substantial tax liability.
  3. [104]
    On this analysis, the limitation periods in respect of the actions for breach of contract, breach of ACL guarantees and negligence would have all expired by 16 August 2018 at the very latest.  This was shortly before the Claim was renewed on 7 September 2018. The defendants therefore submit that they would be prejudiced by the renewal of the Claim, as they would be deprived of the opportunity to rely upon a limitation defence that might otherwise have been available. As Jackson J observed in McIntosh, a renewal would, in effect, extend the time within which the plaintiffs were entitled to proceed as of right.[33]
  4. [105]
    The plaintiffs’ primary submission is that the present application is not an appropriate forum to finally resolve contested limitation points. They submit that these questions are better considered at the hearing or on application for summary judgment following the delivery of the defences.
  5. [106]
    In any event, the plaintiff submits that, at least in respect of the negligence action, the limitation period expired after the Claim was renewed. The plaintiffs submit that they did not suffer loss until after 30 June 2014, when the first plaintiff’s notice of assessment was issued. On this analysis, the limitation period for the negligence action would not have expired until 30 June 2020 at the earliest, which was after the claim was renewed.
  6. [107]
    In support of this submission, the plaintiffs point to the decision of Jackson J in Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors (“Graham & Linda Huddy”),[34] in which his Honour discussed the particularity with which loss must be pleaded in loss of opportunity cases like the present. His Honour held, relevantly:

[48] Within that “philosophy”, a pleading must be as brief as the nature of the case permits, state the material facts as well as any matter that if not stated specifically might take another party by surprise, and state specifically any relief the party claims. Every type of damage claimed must be specifically pleaded, and the nature and amount of the damages claimed must be stated. A party claiming general damages must include particulars of the nature of the loss suffered, the basis on which the amount claimed has been worked out or estimated and the circumstances in which the loss or damage was suffered. A party claiming damages must specifically plead any matter relating to the assessment of damages that may take an opposing party by surprise, if not pleaded.

...

[51] ...[I]n my view, where a plaintiff alleges loss of a valuable commercial opportunity, the plaintiff should in most cases also allege the extent of the loss it says it suffered on the possibilities. It is not sufficient for a plaintiff simply to allege a 100 per cent possibility of obtaining the hoped for or expected benefit, leaving it open to contend that the issue to be decided by the court is the actual degree of likelihood anywhere between 100 per cent and 1 per cent. To require a plaintiff to formulate its case with all reasonable precision does not detract from the power of the court to grant relief generally other than that specified in the pleadings, subject to the application of rules of procedural fairness.

  1. [108]
    On the basis of this passage, the plaintiff submitted that the cause of action in negligence did not arise until actual monetary loss flowed.
  2. [109]
    In relation to the plaintiffs’ reliance on Graham & Linda Huddy, the defendants raised a number of points about why this case did not support the plaintiffs’ submission that they could not properly or responsibly plead their case in the absence of expert evidence. They reiterate that the proper course was for the plaintiff to serve the Claim, then to apply for directions which would obviate the possibility of any application to strike out the proceedings. I have dealt with this issue already. The defendants’ submissions, with respect, did not clearly engage with the separate question of when the limitation period expired with respect to the negligence action.
  3. [110]
    In written submissions the plaintiff also advanced an argument that the limitation period in respect of the breach of contract and ACL claims did not begin to run at least until the Federal Magistrate handed down judgment on 19 March 2013. On this analysis the limitation period would have expired on 19 March 2019, which was after the Registrar renewed the Claim. However, counsel conceded this point in oral argument: 

HER HONOUR: The – the pleading as it is – as is presently plead is that the breach occurred prior to the trial ending. That’s – that’s was the proposition that was put.

MR COVENEY: That’s not what was pleaded.

HER HONOUR: Why’s that?

MR COVENEY: Because it pleads about the failure to advise about – seem to happen as say a party to the family law proceedings. A failure to adduce evidence. It doesn’t put a time on it but obviously there must be a time.

HER HONOUR: Well, you can’t adduce evidence after the trial’s finished.

MR COVENEY: You can make an application.

HER HONOUR: But it’s not plead. So all of the – the acts or admissions that were done as it’s presently plead occurred prior to the trial. The matter of the trial is finished. That is the acts or omissions that make up the breaches.

MR COVENEY: Yes, your Honour.[35]

  1. [111]
    Her Honour Margret Wilson J discussed the significance of the expiry of a limitation period before the renewal of a claim in Babcock & Brown Pty Ltd & Ors v Anderson:[36]

[87] The utility of renewal is affected by the expiration of applicable limitation periods. However, doubts about whether a limitation period has expired should not be finally resolved on applications such as these.

[88]  The expiration of applicable limitation periods does not necessarily preclude renewal. The Court is reluctant to renew a claim after the expiration of a limitation period if doing so would deprive a defendant of a defence. Where there is uncertainty whether the limitation period has expired, it is relevant that renewal may deprive the defendant of a defence. On the other hand, the fact that, because the limitation period has expired, a plaintiff has lost the opportunity to pursue a worthwhile claim cannot without more constitute “good reason” for renewal.

  1. [112]
    Applying these principles to the facts of that case, her Honour held:

[89] The limitation period for a claim in contract probably expired on 7 May 2001 or 24 September 2001 – that is, before the first renewal. The expiration of the limitation period for a claim in negligence depends on when loss was sustained; it is at least arguable that it has still not expired. In their statement of claim the plaintiffs alleged that they had suffered loss in “entering into” the transaction, although at the hearing their counsel foreshadowed arguments that loss was not suffered until the tax assessments were issued in 2007.

[90] That the limitation periods in both contract and tort might have expired before the claim was renewed is a factor against the renewals. On the other hand, that the limitation period in tort may still be running supports the renewals.[37]

  1. [113]
    I note that in Babcock the parties claimed that the limitation periods had expired well before the claim was filed in 2007.[38] In this context, her Honour considered that the application was not an appropriate forum to finally resolve doubts about when the limitation period had expired. These issues could be finally resolved in a separate application by the defendant to dismiss the proceedings on the grounds that the claim had been filed outside the limitation period.
  2. [114]
    The present case is distinguishable, as the defendant alleges that the limitation periods expired after the claim was filed but before the claim was renewed. If the claim is renewed, then there may not be another opportunity to consider the defendants’ limitation arguments. As such, it is appropriate to consider the defendants’ submissions that the limitation periods in respect of each action expired between the date the Claim was filed (11 September 2021) and the date the Claim was renewed (7 September 2021).
  3. [115]
    In my view, as the plaintiff ultimately conceded in oral argument, the limitation period in respect of the claims for breach of contract and breach of the ACL guarantees had expired by 16 August 2018, which was before the Claim was renewed. It is less clear when the limitation period in respect of the negligence action expired but, for reasons I will develop, it is ultimately unnecessary to resolve this question in order to dispose of the present application. 

Other prejudice

  1. [116]
    It is for the plaintiffs to exclude the possibility that the defendants would be materially prejudiced by the renewal of the claim.[39] General prejudice will be presumed to flow from the effluxion of time,[40] but in this case no specific prejudice has been identified.
  2. [117]
    The first and second plaintiffs have had notice of the possibility that proceedings would be commenced since October 2014, when the plaintiff informed them of his intention to seek legal advice on the issue. There is no suggestion that documentary evidence has been destroyed or relevant details forgotten.
  3. [118]
    In the present case, considering all the matters, I am satisfied that renewing the claim would not materially prejudice the defendants.   
  4. [119]
    Further, the defendants have not, themselves, acted with expedition in this case; their actions have been inconsistent with the “philosophy” of the UCPR in rule 5. The defendants have waited over 15 months to bring the application to set aside the Registrar’s Order. That is so despite the third defendant having been first provided with a copy of the renewal application and supporting affidavit on 3 October 2019. However, I note that it is not clear when these documents came to the attention of the first and second defendants.
  5. [120]
    In the time since they were served, the defendants have made multiple, detailed requests for further and better particulars, requested extensions of the time within which to serve their defences, and applied for the matter to be placed on the supervised case list.  The third defendant, in particular, did not make its request for particulars until April 2020, despite having been specifically asked by the plaintiffs to make any request by November 2019. The defendants have proceeded in a way, up until December 2020, that indicated they intended to defend the proceedings. 

Conclusion: there is “another good reason” to renew the Claim 

  1. [121]
    I have considered the submissions made by the parties and, in particular, the defendants’ submission that the explanation for the plaintiffs’ delay in serving the Claim lacks merit, as the pleadings were not substantially amended following the receipt of expert evidence and any amendments that were made did not require the expert evidence. The most substantial amendment to the Claim was in the quantification of the damages and I note that Jackson J in McIntosh, stated that the inability to quantify damages is not a good reason for renewing a claim.
  2. [122]
    However, as Burns J noted in King, a party does not necessarily need to prove that delay was required for a claim to be properly pleaded in order to establish that there is “another good reason” to renew a claim. There may be other satisfactory explanations for delay in serving a claim.[41] What the Court must determine is whether there is “another good reason” for the renewal and, given, what has been said by Keane JA (as his Honour then was) in The IMB Group, and further explained by Jackson J in McIntosh, the Court’s assessment will be vitally concerned with the extent to which the plaintiff has complied with the implied obligation to proceed in an expeditious way.
  3. [123]
    In my view, this present case, is somewhat analogous to the circumstances as set out in King, where there was never any suggestion that the pleading failed to disclose an arguable cause of action.[42] The delay in service of the claim in King, as in this case, was never necessary to enable the plaintiffs to comply with the UCPR.[43] Rather, it was necessary to enable the plaintiffs and their lawyers to satisfy themselves that there was a reasonable basis for bringing the claim. As in King, the associated investigations took some time and, although some steps along the way might have been taken more quickly, and some may have been strictly unnecessary, my overall impression is not one of “calculated inactivity”.[44] The plaintiffs in this case, as in King, have acted in accordance with the legal advice that was provided to them and this is not a case where a deliberate choice was made not to serve the Claim.[45]
  4. [124]
    In reaching his conclusion in King, Burns J  made the following comments:

[90] A thorough investigation of the claim was important to the plaintiffs and, particularly, to Mrs King. The service of a claim that could not be substantiated, or even one that was not worthwhile, might have put at risk her financial security. It is therefore understandable why the claim was not served until a definitive opinion on, particularly, the question of loss was received from Mr Green. The plaintiffs were entitled to investigate and take advice on the claim before serving it, provided they did so in an expeditious way and, in my opinion, they did.

[91] There can be “no better reason for granting relief than to see that justice is done”. I am satisfied that there was good reason for renewing the claim. The delay in serving it has been satisfactorily explained. The implied undertaking to proceed expeditiously has not been breached and the plaintiffs are not otherwise at fault. The claim is apparently worthwhile and hardship might result if the plaintiffs are shut out from their pursuit of it. These factors, supporting as they do the renewal of the claim, outweigh those that are in favour of setting aside the renewal, that is to say, the specific and general prejudice earlier identified and the likelihood that the defendants will be deprived of a limitation defence.

  1. [125]
    His Honour’s comments resonate with the circumstances of this case. It was appropriate for the plaintiffs in this case to investigate and take and advice on the Claim before serving it, provided they did so in an expeditious way. This is not a case of a plaintiff starting a claim in the last days before the expiration of a limitation period but not serving it so to avoid having to proceed in an expeditious way.[46]
  2. [126]
    In my view, the plaintiffs have complied with their implied undertaking to proceed expeditiously.  They have provided a satisfactory explanation for their delay in serving the defendants. Further they have adequately explained the delay since the defendants have been served.
  3. [127]
    On the other hand, the defendants waited for over a year to bring this application and have not, themselves, proceeded expeditiously. In the meantime, all parties have taken steps to proceed with this matter including placing this matter on the supervised case list. 
  4. [128]
    I am not satisfied that the plaintiffs’ disclosure at the ex parte application before the Registrar lacked candour.
  5. [129]
    I note that the delay caused by the renewal creates some general prejudice for the defendant. I note also that that the limitation periods for the actions for breach of contract and breach of the ACL appear to have expired between the date the Claim was filed and the date it was renewed. This creates some additional prejudice for the defendant and is a factor that counts against renewal.
  6. [130]
    It is less clear whether the limitation period for the negligence action expired before or after the claim was renewed. However, it is not necessary to resolve this question in order to dispose with the present application. The expiry of the limitation period is only one factor relevant to the exercise of my discretion. In King, for example, Burns J considered the defendants “may very well be deprived of a limitation defence”,[47] but nonetheless held that the factors supporting the renewal outweighed any prejudice to the defendant.[48] In my view, the same can be said in this case. Even if the limitation period for the negligence action (as well as the actions for breach of contract and breach of the ACL), had expired before the claim was renewed, in my view, the factors supporting the renewal outweigh those against it.
  7. [131]
    This matter is finely balanced. However, upon consideration of all of the evidence and the relevant circumstances, I am satisfied that the plaintiffs have shown that there is “another good reason” to renew the Claim. The factors supporting the renewal of the Claim outweigh those that are in favour of setting it aside. The registrar’s order should not be set aside. 
  8. [132]
    It follows that the applications must be dismissed.
  9. [133]
    Further, in relation to costs, I propose to make the same order as in King.[49] The defendants will be ordered to pay the plaintiffs’ costs of and incidental to the applications calculated on the standard basis, unless one or more of the parties, by submissions in writing filed and served within seven days, contend for the making of a different order.

Footnotes

[1] Quinlivan v Konowalous & Ors [2019] QSC 285 at [50]; Babcock & Brown Pty Ltd v Anderson [2010] QSC 287 at [54].

[2] King v Gunthorpe & Ors [2018] QSC 1 at [68]; Babcock & Brown Pty Ltd v Anderson [2010] QSC 287 at [55].

[3] Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [29] (Williams J), followed and applied in McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [4] (Jackson J); Quinlivan v Konowalous & Ors [2019] QSC 285 at [51] (Davis J).

[4] Uniform Civil Procedure Rules 1999 (Qld) s 24(1).

[5]  [1999] QCA 513.

[6]  (1981) 180 CLR 337 at 343, 344, 345, 346.

[7] Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [4].

[8] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [70] (Burns J); Quinlivan v Konowalous & Ors [2019] QSC 285 at [87] (Davis J).

[9]  [2007] 1 Qd R 148.

[10]  [2019] QSC 285.

[11]  [2016] QSC 203.

[12] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [36].

[13] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [18].

[14] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [94], citing The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at [47]; Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [13].

[15] The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at [38].

[16]  [2010] QCA 270 at [11].

[17] Quinlivan v Konowalous & Ors [2019] QSC 285 at [60].

[18] McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [18], citing Heaven [1965] 2 QB 355 at 365.

[19] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [74]; Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [29], followed and applied in McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [4] (Jackson J) and Quinlivan v Konowalous & Ors [2019] QSC 285 at [51] (Davis J).

[20] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [92].

[21] McIntosh & Anor v Maitland Lawyers & Ors [2016] QSC 203 at [75].

[22]   See, e.g. MacDonnell v Rolley & Ors [2000] QSC 58 at [12]. 

[23]  See, e.g. King & Ors v Gunthorpe & Ors [2018] QSC 1 at [88].

[24]  Transcript of Proceedings on 22 January 2021 at 1-52 / line 33 – 45.

[25] McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [75]

[26]  Transcript of Proceedings on 22 January 2021 at 1-29 / line 35 – 1-30 / line 32.

[27] King & Ors v Gunthorpe & Ors [2018] QSC 1.

[28] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [92].

[29] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [89].

[30] Williams v Kim Management Pty Ltd [2012] QSC 143 at [49] – [50].

[31] Williams v Kim Management Pty Ltd [2012] QSC 143 at [53].

[32] McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [36].

[33] McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [36].

[34]  [2016] QSC 221.

[35]  Transcript of Proceedings on 22 January 2021 at 1-53 / line 15-46.

[36]  [2010] QSC 287.

[37] Babcock & Brown Pty Ltd & Ors v Anderson [2010] QSC 287 at [89] – [90].

[38] Babcock & Brown Pty Ltd & Ors v Anderson [2010] QSC 287 at [14].

[39] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [74].

[40] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [74].

[41] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [89].

[42] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [85].

[43] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [85].

[44] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [88].

[45] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [88].

[46]  Cf McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [36].

[47] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [81].

[48] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [91].

[49] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [94].

Close

Editorial Notes

  • Published Case Name:

    Murdoch Lawyers Pty Ltd & Ors v Gouldson & Anor

  • Shortened Case Name:

    Murdoch Lawyers Pty Ltd v Gouldson

  • Reported Citation:

    (2021) 7 QR 726

  • MNC:

    [2021] QSC 96

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    07 May 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287
6 citations
Jump To
Cite 1 - [2010] QSC 287
Cite 2 - [2010] QSC 287
Cite 3 - [2010] QSC 287
Cite 4 - [2010] QSC 287
Cite 5 - [2010] QSC 287
Cite 6 - [2010] QSC 287
Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221
1 citation
Jump To
Cite 1 - [2016] QSC 221
Heaven v Road and Rail Wagons Ltd. (1965) 2 QB 355
1 citation
Jump To
Cite 1 - (1965) 2 QB 355
High Top Pty Ltd v Kay Sheila Lawrence [2010] QCA 270
1 citation
Jump To
Cite 1 - [2010] QCA 270
King v Gunthorpe [2018] QSC 1
18 citations
Jump To
Cite 1 - [2018] QSC 1
Cite 2 - [2018] QSC 1
Cite 3 - [2018] QSC 1
Cite 4 - [2018] QSC 1
Cite 5 - [2018] QSC 1
Cite 6 - [2018] QSC 1
Cite 7 - [2018] QSC 1
Cite 8 - [2018] QSC 1
Cite 9 - [2018] QSC 1
Cite 10 - [2018] QSC 1
Cite 11 - [2018] QSC 1
Cite 12 - [2018] QSC 1
Cite 13 - [2018] QSC 1
Cite 14 - [2018] QSC 1
Cite 15 - [2018] QSC 1
Cite 16 - [2018] QSC 1
Cite 17 - [2018] QSC 1
Cite 18 - [2018] QSC 1
MacDonnell v Rolley [2000] QSC 58
1 citation
Jump To
Cite 1 - [2000] QSC 58
McIntosh v Maitland [2016] QSC 203
14 citations
Jump To
Cite 1 - [2016] QSC 203
Cite 2 - [2016] QSC 203
Cite 3 - [2016] QSC 203
Cite 4 - [2016] QSC 203
Cite 5 - [2016] QSC 203
Cite 6 - [2016] QSC 203
Cite 7 - [2016] QSC 203
Cite 8 - [2016] QSC 203
Cite 9 - [2016] QSC 203
Cite 10 - [2016] QSC 203
Cite 11 - [2016] QSC 203
Cite 12 - [2016] QSC 203
Cite 13 - [2016] QSC 203
Cite 14 - [2016] QSC 203
Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513
6 citations
Jump To
Cite 1 - [1999] QCA 513
Cite 2 - [1999] QCA 513
Cite 3 - [1999] QCA 513
Cite 4 - [1999] QCA 513
Cite 5 - [1999] QCA 513
Cite 6 - [1999] QCA 513
Quinlivan v Konowalous [2019] QSC 285
7 citations
Jump To
Cite 1 - [2019] QSC 285
Cite 2 - [2019] QSC 285
Cite 3 - [2019] QSC 285
Cite 4 - [2019] QSC 285
Cite 5 - [2019] QSC 285
Cite 6 - [2019] QSC 285
Cite 7 - [2019] QSC 285
The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission[2007] 1 Qd R 148; [2006] QCA 407
4 citations
Jump To
Cite 1 - [2007] 1 Qd R 148
Cite 2 - [2007] 1 Qd R 148
Cite 3 - [2007] 1 Qd R 148
Cite 4 - [2007] 1 Qd R 148
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
1 citation
Jump To
Cite 1 - (1981) 180 CLR 337
Williams v Kim Management Pty Ltd[2013] 1 Qd R 387; [2012] QSC 143
2 citations
Jump To
Cite 1 - [2012] QSC 143
Cite 2 - [2012] QSC 143

Cases Citing

Case NameFull CitationFrequency
Goldsmith v Resolution Life Australasia Ltd [2024] QSC 171 citation
WorkCover Queensland v Lismore City Council [2024] QSC 2922 citations
Zaporozhki v AAI Limited (trading as GIO) [2022] QSC 224 citations
1

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