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[1999] QCA 491
Court of Appeal (Qld)
1999-11-30
McMurdo, P, Pincus JA, Thomas JA, Further Order of the Court
Original judgment source is linked above.
[1] THE COURT: This appeal was allowed, in part, on 30 November 1999 and an order was made which contemplated the making of amendments to the appellants' proposed new statement of claim. These have been discussed between the parties but no final agreement has been reached. One point at issue is that the appellants say they should be allowed to raise the question of the advice given them about the option to purchase which is the subject of complaint in para 5E(h) of the proposed pleading. It appears to us that the process of determining whether the respondents drew the option document incorrectly necessarily involves analysis of any discussion between them and their clients about it. We are of opinion that the amended pleading should be allowed to raise the question of the advice given about the option. But the proposed 5E(j) is too wide and 5F as well as para 12 require some attention.
[2] As to damages the respondents argue that the appellants should not be allowed to raise a case that if they had been properly advised about the option they would not have entered into certain transactions. If it is found that the respondents were in breach of their duty as to the content of the option document, the court will have to determine what damage (if any) was suffered. It might find that no option would ever have been signed or that it would have been signed but in a different form or that some other consequence ensued. It does not appear to us that the pleading should be in such a form as to prevent the trial judge from giving effect to the view reached as to the likely consequence of the respondents' breach, if any is found to have occurred.
[3] Two other matters should be mentioned. One is that the parties have drawn attention to an error in para [47] of the reasons delivered on 30 November 1999. The reference to "5E, F and G" in the second line should be to 5E(f) and (g) and so the order then made requires correction.
[4] Secondly, in its amended form the pleading appears to contain some allegations which, according to the argument for the appellants at the hearing on 2 September 1999, go nowhere; that comment relates particularly to the complaint about registration of the security which counsel said led to no damage. But we do not insist that the parties should necessarily lose any further time, by entering into discussions about that.
[5] A. It will be ordered that the statement of claim be amended to the form included in Exhibit HAC4 to the affidavit of Heather Anne Campbell sworn on 16 March 2000, subject to the following changes:
"The plaintiffs relied upon the defendants properly to advise them about the matters referred to in this paragraph 5E".
"The defendants failed properly to advise the plaintiffs about the matters referred to in paragraph 5E".
B. Further order that the case be placed on the supervised case list.
C. Further order that the order made on 30 November 1999 be corrected by substituting "5E(f) and (g)" for "5E, 5F and 5G".
D. No order as to the costs of the appeal or of this further order.
Draney & Anor
Barry & Ors [1999] QCA 491