The seller of a $2.7 million Hamilton Island apartment signed up in September 2007 has sued his lawyers over their advice to bring litigation against the buyers who failed to settle.
The Ronsons had refused to sign a deed that Hamilton Island Enterprises and seller Ligon Sixty One P/L demanded as a condition for the grant of HIE’s consent as head lessor to the transfer of the seller’s title to the luxury leasehold villa.
The deed purported to grant to HIE the right to make “rules” beyond those reserved to it under the sub-lease. Among many over-reaches, the rules imposed greater restrictions on the use of motor vehicles on the island than did the sub-lease and could even allow HIE to prevent the buyers from entering the island at all.
In May 2012 the Supreme Court ruled that buyers Keith and Jeanette Ronson had validly terminated their contract with Ligon because of the unreasonable demands made by Hamilton Island Enterprises for its consent to the assignment. It dismissed Ligon’s claim and ordered it pay the Ronsons’ legal costs.
The seller’s case against ClarkeKann – the lawyers who are alleged to have recommended the failed lawsuit – is to recover those legal costs as well as its own.
In a preliminary application that came before the court last week, ClarkeKann alleged the second law firm engaged by Ligon to run the original claim should bear some liability for its failure.
It had, they claimed, failed to recommend acceptance of the Ronsons’ settlement offer and to point out the substantial financial risks of a trial.
But even if law firm Beazley Singleton had made some errors, Justice Philip McMurdo ruled it likely enjoyed liability immunity over its role in deciding how to respond to the offer and could not, on the case pleaded, be a “concurrent wrongdoer”.
Likewise, CK’s contribution claim against HIE – on the ground it ought not have demanded covenants beyond the terms of the sub-lease – was also struck out because contrary to the allegations in its defence, the effect of Property Law Act s 121 is not to attach liability to a landlord who unreasonably withholds an assignment consent.
Rather, the provision allows the assignment to proceed without compliance with the unreasonable conditions.
ClarkeKann still has numerous grounds on which to defend the claim which will proceed to trial in the coming months.