BRODBECK & ANOR. v. POTTS & ORS. [2001] NSWCA 39

New South Wales Court of Appeal

CITATION : BRODBECK & ANOR. v. POTTS & ORS. [2001] NSWCA 39 FILE NUMBER(S) : CA 40091/01 HEARING DATE(S) : 28/02/01 JUDGMENT DATE : 28 February 2001

PARTIES : DESMOND JAMES BRODBECK and JOAN MAREE BRODBECK (Claimants) CRAIGHTON POTTS, CLIVE ARTHUR POTTS, JOHN LATIMER, ASHLEY REED, ROSS NEVILLE AND PETER CLINCH (Opponents) JUDGMENT OF : Meagher JA at 49; Powell JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT DC 4385/95 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : P.M. Biscoe QC and F.P. Donohoe (Claimants) J.W.J. Stevenson (2, 4-6 Opponents) SOLICITORS : Verekers (Claimants) Mallesons Stephen Jaques (2,4-6 Opponents) CATCHWORDS : PRACTICE AND PROCEDURE - Hearing date - Application to vacate - Application refused - Application for leave to appeal from refusal ND DECISION : Leave to appeal refused.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40091/01 DC 4385/95 MEAGHER JA POWELL JA

28 February 2001

BRODBECK & ANOR v. POTTS & ORS.

JUDGMENT

1 POWELL JA: The facts which have given rise to the present application for leave to appeal from a judgment delivered and order made by Delaney DCJ on Wednesday last provide yet another example of what appears to be the widespread view of the legal profession that a detailed understanding, and an intelligent application, of the rules of practice and procedure in the several courts of this State is no longer a necessary, nor even a desirable, part of the armory of any legal practitioner who is regularly involved in litigation in this State. The result, I regret to say, is a situation which casts not the slightest credit on any of those members of the legal profession who have acted for the Claimants over the period of the last six years. 2 The proceedings in the District Court to which the application dealt with by Delaney DCJ was related were proceedings in which the Claimants, Mr and Mrs Brodbeck, sought to recover from persons who at various times were said to be members of the firm of Potts Latimer & Co damages in respect of what were alleged to have been breaches of contract or for negligence in relation to actions taken by the various members of that firm on behalf of, and on the instructions of, the Claimants over the period from 1976 to 1991. 3 The facts, first, that there were various retainers over that period and, second, that, during that period, the membership of the firm Potts Latimer & Co varied, give rise to some of the problems which bear upon the fate of the present application. 4 As far as I can judge it, the members of the firm of Potts Latimer & Co in 1976 were Mr Craighton Potts - who is named as the First Opponent - Mr Clive Potts - who is named as the Second Opponent - and Mr John Latimer - who is named as the Third Opponent. 5 The first of the retainers upon which the Claimant rely is said to have been given in about May 1976. It would seem, or so we were informed, that the instructions in question were given by one or other of the Claimants to Mr Craighton Potts. Those instructions, as it would seem, involved the drawing up of documents said to be necessary, or desirable, to be executed in order to give effect to an arrangement said to have been made a little earlier between the Claimants and Mrs Faulkner, who was the mother of the second named Claimant, Mrs. Brodbeck. 6 It is said that Mr Craighton Potts died in December 1976. 7 The documents, which it would appear were drawn by, or at the direction of, Mr Craighton Potts, were executed by Mrs Faulkner and the Claimants in May 1977. Those documents were an Agreement, a Memorandum of Mortgage in relation to land said to be the subject of the agreement between the Claimants and Mrs Faulkner, and a Caveat, no doubt intended to protect what the Claimants claim were intended to be their interests in the subject land. 8 It is said by the Claimants that those documents did not reflect the agreement that they had earlier made with Mrs Faulkner and that, in consequence, the members of the firm of Potts Latimer & Co were guilty of a breach of contract or, alternatively, were liable in negligence. 9 This being so, it is convenient here to note that s.14 of the Limitation Act 1969 provides that, in relation to claims based on breaches of contract or torts, other than torts leading to claims for personal injury, the limitation period is six years from the date of accrual of the relevant cause of action, and that s.65 provides that, at the expiration of that period of limitation, the relevant cause of action is extinguished. 10 At some time in 1978 the Fourth Opponent, Mr Reed, became a partner of the firm of Potts Latimer & Co. 11 In 1983 Mr John Latimer died. 12 In 1986 the Fifth Opponent, Mr Neville, became a partner of the firm of Potts Latimer & Co and remained so until December 1994. 13 The position in 1989, as far as one can judge it, thus was that the partners of the firm of Potts Latimer & Co were Mr Clive Potts, Mr Reed and Mr Neville. 14 It would appear that, at some time during the course of the early part of 1989, disputes broke out between the Claimants and Mrs Faulkner as to the nature of their respective rights and interests under the documents which had been executed in 1977. 15 That being, so it is said, a second retainer was given to the firm in June 1989, the retainer, as I understand such material as is before the Court, being to advise, first, as to whether or not the documents executed in 1977 gave effect to what the Claimants said had been their underlying agreement, and, second, as to whether a letter said to have been written by Mrs Faulkner at an earlier time constituted a sufficient agreement to protect the interests of the Claimants. 16 As best as I can judge it, it is said that whichever of the partners in the firm it was who advised the Claimants, advised them that the documents did not reflect what was said to be the underlying agreement but that the letter which had been written by Mrs Faulkner adequately protected their interests. 17 There the matter apparently was let lie for a few years. 18 Meantime, in April 1990, the Sixth Opponent, Mr Clinch became a partner of the firm of Potts Latimer & Co and remained so until December 1994. 19 Although what happened next is not entirely clear, it would seem that, in October 1991, or thereabouts, the firm was retained by the Claimants to endeavour to negotiate with Mrs Faulkner, or those who were then representing her, a compromise of the disputes which had arisen. 20 It is clear that whatever efforts were taken by the relevant member of the firm were not successful as it is said that in late 1991, or early 1992 the claimants retained a Ms Jacobs, then a solicitor/clerk employed by Messrs Tress Cocks & Maddox to negotiate for them with a view to settling the dispute with Mrs Faulkner. 21 Clearly enough whatever was done by Ms Jacobs was unsuccessful in achieving a settlement, as it is said that, after Mrs Faulkner's death in May 1994, Ms Jacobs was given instructions to take whatever steps might be necessary to protect the Claimants' interests.. 22 At some time in 1995 Ms Jacobs moved to the firm of Dibbs, Crother &Osborne, apparently as a solicitor/clerk. When she did so, the Claimants retained that firm to act for them on their behalf. 23 In June 1995 , the Statement of Claim which commenced the proceedings in relation to which the application dealt with by Delaney DCJ came about was filed in the District Court. In that Statement of Claim, as I have indicated, the Claimants sought to recover against the Messrs. Potts and Latimer and Messrs Reed, Neville and Clinch damages, either, for breach of contract, or, for negligence in relation to the actions taken by them, or such of them as were then members of the firm, in relation to the three retainers which I have briefly dealt with. 24 The rules of the District Court as they were in 1995 provided (inter alia) that a Statement of Claim was valid for service only for three months after the date on which it was filed or for such further period as might be fixed on application to the Court. As best as I can judge it, save for the application which may - it is not clear whether it was - have been made to Delaney DCJ, no application was ever made to extend the time for service of that Statement of Claim, despite the fact that no action was taken to have it served for the better part of two years thereafter. 25 Meantime, in November 1995, there were commenced in the Equity Division of this Court on behalf of the Claimants proceedings in which they sought to against the then legal personal representative of Mrs Faulkner an order for specific performance of what was claimed to have been the underlying agreement between the Claimants and Mrs Faulkner, or, alternatively, a declaration of trust of the land the subject of that agreement, or, further alternatively, relief pursuant to the provisions of the Family Provision Act 1982, the claim under the Act being based, at least in part, on the actions said to have been taken by the Claimants pursuant to the underlying agreement with Mrs Faulkner. 26 In April 1997, Ms Jacobs writing on the letterhead of Dibbs Crowther & Osborne wrote to Messrs Potts Latimer & Co for the attention of Mr Reed, a letter which, omitting formal parts was as follows: "BRODBECK We refer to the writer's telephone conversation with you on 16 April 1997 and confirm that you are prepared to accept service of the enclosed Statement of Claim by DX. Accordingly, we enclose by way of service upon you, District Court Statement of Claim. As our client is involved in Supreme Court proceedings which will ultimately determine their loss the Statement of Claim is served to preserve our client's position. We have instructions to file an application for a stay of the proceedings pending the resolution of the Supreme Court proceedings. We would appreciate your attitude to this application. We note that you have undertaken to advise us how we may serve the other partners named in the Statement of Claim without causing any undue inconvenience to them. We look forward to hearing from you."