ALF Property 2 Pty Ltd v Tucker

REASONS FOR JUDGMENT 1 This proceeding was heard at the same time as proceeding NSD 1844 of 2010 (ALF Group Pty Ltd v Tucker [2011] FCA 379). The plaintiff in NSD 1844 of 2010 (ALF Group Pty Ltd (ACN 140 744 225) (Group) is the owner of all of the shares in the plaintiff in this proceeding. The defendants in proceeding NSD 1844 of 2010 are the same persons as are defendants in this proceeding. 2 The defendants are the partners of a firm of solicitors based in Brisbane, Qld, which practises under the name "Tucker & Cowen Solicitors" (the solicitors). On 23 June 2010, the solicitors were instructed by James Warren Byrnes (Mr Byrnes) to act for the plaintiff in respect of a conveyance of a property at Hope Island, Runaway Bay, Qld (the property). The Contract for Sale in respect of the property was exchanged on 11 June 2010, approximately two weeks before the solicitors were first instructed. On 26 June 2010, the solicitors received a copy of the signed contract from Michael Pakula, who is one of the directors of Group. That contract had by then been signed by both the vendor and by the purchaser (the plaintiff). The solicitors and the plaintiff proceeded at all times thereafter upon the basis that, subject to the plaintiff's rights afforded by the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA), the contract was binding. 3 Pursuant to instructions given by Mr Pakula to the solicitors, on 13 July 2010, the solicitors lodged a caveat against the title to the property. The interest claimed in that caveat was the plaintiff's interest pursuant to the executed Contract for Sale dated 11 June 2010. 4 On 2 July 2010, Ms Sylvia Lopez, a solicitor employed by the solicitors, advised Mr Pakula that the Contract for Sale was liable to be terminated by the plaintiff at its election pursuant to rights afforded to it by PAMDA. That advice, of course, was given upon the basis that the Contract was otherwise binding. Ms Lopez advised Mr Pakula that, should the plaintiff choose to exercise that right, it would then be in a position to renegotiate the terms of the Contract in such manner as it thought fit. Ms Lopez also told Mr Pakula that the PAMDA rights which the plaintiff then had would soon be extinguished by reason of amending legislation which was to take effect on 30 September 2010. Later that same day, Mr Pakula instructed Ms Lopez that the plaintiff did not wish to avail itself of its PAMDA rights at that time. He said that he had discussed the matter with Mr Byrnes and that that was the decision which had been made. 5 Thereafter, from 2 July 2010 until 29 September 2010, the solicitors carried out work in respect of the purchase, mostly on the instructions of Mr Pakula. 6 The solicitors rendered Memoranda of Fees to the plaintiff from time to time in the period between early July and late September 2010 for the work which they performed in relation to the purchase of the property. 7 By the end of September 2010, the solicitors had rendered fees and disbursements totalling $7,977.33 incl GST to the plaintiff. The amount of $7,977.33 was the total of the amounts rendered in the following Tax Invoices: (a) Tax Invoice No 35264 dated 30 July 2010(in respect of the period from 2 July 2010 to 31 July 2010) $4,527.66 (b) Tax Invoice No 36038 dated 30 September 2010(in respect of the period from 1 August 2010 to 29 September 2010) $3,449.67 TOTAL $7,977.33