Raine & Horne Commercial (NSW) Pty Limited v Rozene Pty Limited [2001] NSWSC 352

New South Wales Supreme Court

CITATION : Raine & Horne Commercial (NSW) Pty Limited v Rozene Pty Limited [2001] NSWSC 352 FILE NUMBER(S) : SC 12765/89 HEARING DATE(S) : 8/11/2000 JUDGMENT DATE : 8 May 2001

PARTIES : Raine & Horne Commercial (NSW) Pty Limited- Appellant Rozene Pty Limited- Respondent JUDGMENT OF : Dowd J at 1

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT 12765/89 FILE NUMBER(S) : LOWER COURT Malpass M JUDICIAL OFFICER :

COUNSEL : Mr MJ Slattery QC, Mr MJ Walsh- Plaintiff Mr DR Stack- Defendant SOLICITORS : Deigan Moore Associates- Plaintiff Phillips Fox Lawyers- Defendant CATCHWORDS : Motion to strike out Statement of Claim adding cause of action in negligence and under the Trade Practices Act 1974 - Motion to strike out - Application of Pt 20 SCR LEGISLATION CITED : Supreme Court Act 1970 Trade Practices Act 1974 Australian & New Zealand Banking Group v Larcos (1987) 13 NSWLR 286. Brimson v Rocla Concrete Pipes Ltd (9182) 2 NSWLW 937. CASES CITED : Camden Park v O'Toole (1969) 72 SR (NSW) 188. State of Queensland v John L Holdings Pty Limited (1997) 189 CLR 146. Wardley v State of WA (1997) 175 CLR 514. Weldon v Neal (1887) 9 QBD 394. DECISION : 1. Application dismissed; 2. Costs reserved.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

8 May 2001

12765/89

Raine & Horne Commercial (NSW) Pty Limited v Rozene Pty Limited Reasons for Judgment

1 DOWD J: This appeal arises out of a Motion seeking that the Court strike out two causes of action in a Statement of Claim filed by the respondent, Rozene Pty Limited ('Rozene'), against the appellant, Raine & Horne Commercial (NSW) Pty Limited ('Raine & Horne'), which motion was heard and refused by Master Malpass in a judgment of 18 August 2000. 2 Rozene, in November 1987, had employed Raine & Horne as agent in respect of the sale of Rozene's commercial premises in North Sydney, and as a result of that agency, Rozene entered into a contract on 20 May 1988 with Wedna Bulk Pty Ltd to sell the property for $8,250,000, completion taking place on 9 December 1988. 3 On approximately 18 May 1988, an employee of Raine & Horne advised a director of Rozene that the price offered by Wedna Bulk Pty Ltd was the best price which could be obtained for the property, and that Raine & Horne had offered the property to all prospective purchasers, but no purchaser had been prepared to offer a higher sum and that no higher sum would be expected if the property went to sale by auction. 4 Rozene alleged that it relied on the advice given to it by Raine & Horne in agreeing to sell the property for the price offered. 5 On the day of the completion of the sale to Wedna Bulk Pty Ltd on 9 December 1988, a contract for sale of the property to the ANZ Banking Group Ltd for $12,816,000 was settled simultaneously. 6 On 22 June 1989, Rozene commenced proceedings in the Commercial Division of this Court, against Raine & Horne to which Raine & Horne appeared on 19 July 1989, the proceedings later being transferred to the Common Law Division. After a period of total inactivity, Raine & Horne filed a Notice of Motion on 28 April 1997, seeking that the proceedings be dismissed for want of prosecution. That Notice of Motion was dismissed by Master Malpass on 6 July 1999. Registrar Irwin, on 12 July 1999, directed Rozene to file and serve a Statement of Claim, which, after filing, precipitated these proceedings. 7 This Notice of Motion sought, pursuant to Pt 15 r 26 SCR, to strike out the claim for negligence and the claim under the Trade Practices Act 1974 ('the Act') as an abuse of process, and also included an issue of particulars which was resolved, except for the matter of costs. 8 The original Summons commencing the proceedings pleaded: