Proctor : August 2018
34 PROCTOR | August 2018 Actron Investments Queensland Pty Limited v DEQ Consulting Pty Ltd & Anor  QCA 147, 29 June 2016 General Civil Appeal – where the appellant purchased a commercial lot in a community titles scheme which included a corporate headquarters/ warehouse – where the floor was a floating concrete slab – where the first respondent (through the second respondent) issued a Form 15 Compliance Certificate – Design under the Standard Building Regulation 1993 (Qld) by reference to the Building Code of Australia (2006) – where this form was relied upon and used by the building certifiers as conveying the engineering opinion that the anticipated loads would be resisted by the floating concrete slab without undue settlement – where the building certifier was entitled to rely on the Form 15 for this purpose – where the floating slab subsided due to marine clays in the subsurface shrinking and swelling, and settlement occurred because of the consolidation of compressible marine clays – where the appellant claimed damages against the first respondent pursuant to s82 Trade Practices Act 1974 (Cth) (TPA) for misleading and deceptive conduct in contravention of s52 TPA – where the appellant claimed damages against the second respondent for being “a person involved in the contravention” in terms of s75B of that Act – whether the settlement of the floating slab was “undue” – whether the first respondent’s communication of the Form 15 was misleading conduct in contravention of s52 TPA – whether the second respondent possessed the knowledge required to render him liable as a party to the first respondent’s contravention – where the only element of s52 TPA in issue in the appeal is the requirement that the alleged conduct be misleading – where Mr Henry (a director of DEQ and a registered engineer), who was described in the Form 15 as a competent person, certified that the items described in the form (the structural elements detailed on the nominated DEQ drawings include the floating slab) “will comply with the Standard Building Regulation” – where consistently with the incorporation in the BCA of AS3600, that Australian Standard is nominated in the form as one of the Australian Standards forming the ‘Basis of Certification’ – where thus the issue of the Form 15 conveyed Mr Henry’s certification that the floating slab will comply with AS3600 – where the issue of the Form 15 was misleading because the anticipated settlement would be “undue”, the evidence demonstrates that this was in fact Mr Henry’s own opinion, and there was no reasonable basis for a competent person in Mr Henry’s position to reach the contrary opinion – where the effect of Mr Henry’s evidence is that he thought there would be excessive settlement but that a client determined whether or not the expected settlement was “undue” settlement – where consistently with Mr Henry’s notes on the plans, his reports, and his oral evidence (when the irrelevant consideration of his client’s suggested expectations is disregarded), a competent person in Mr Henry’s position could not reasonably have concluded that the expected settlement was not “undue” – where an anticipated requirement to embark upon the admittedly expensive and disruptive exercise of relevelling or replacing a concrete slab, perhaps as soon as after only one quarter of its intended design life and no later than after three-eighths of its design life, could not reasonably be regarded as a probability of structural failure which is “acceptably low throughout its intended life” for the purposes of the third paragraph of cl.2 .1 .1 of AS3600 – where there is no apparent basis for an opinion that settlement of that extent and with those substantial structural effects so early in the building’s design life is not “undue” settlement in the context of the application under the BCA of cl.16.2 .1 of AS3600 – where in the result, the issue of the Form 15 was seriously misleading as to the implicit compliance with AS3600 – where its misleading character was not altered by the mere possibility that the building certifier might discover that the anticipated settlement would be undue by examining the first report and the notes on the plans – where DEQ engaged in conduct that was misleading for the purposes of s52 of the TPA by giving the Form 15 to DDS – where there being no other issue concerning the elements of s52, it follows that DEQ should be found to have contravened that section – where pursuant to s82(1) of the TPA, Actron is entitled to recover the amount of loss or damage it suffered by the contravening conduct by action against DEQ or any “person involved in the contravention” – where the probabilities strongly favour a finding that Mr Henry knew that the Form 15 would convey to the building certifier that it was Mr Henry’s own opinion that the anticipated settlement was undue – where Mr Henry possessed the knowledge required to render him liable as a person involved in DEQ’s contravention. Appeal allowed. Set aside the order made in the trial division that the proceeding against the second and third defendants is dismissed. Remit the matter to the trial division for further consideration. Direct the parties have leave to make written submissions about costs in accordance with the practice direction. Legal Services Commissioner v Sheehy  QCA 151, 29 June 2018 General Civil Appeal – where the respondent is a legal practitioner – where the respondent acted for one of two sellers under a contract for the sale of land – where settlement did not occur on the due date – where the respondent’s client agreed to an extension of the date for settlement but the other seller did not – where the solicitor for the other seller wrote to the buyer’s solicitor, copied to the respondent, electing to terminate the contract – whether the contract could be terminated at the election of one, but not both, of the sellers – where for this contract the reasoning in Lion White Lead Ltd v Rogers (1918) 25 CLR 533 was applicable: “[t]he time for performance having arrived and an actual fundamental breach having occurred, [Mr Brander was] entitled to say ‘I will not proceed further. There is nothing to compel me.’” – where put another way, Mr Brander as a joint promisee was not required to refuse to accept something less than the performance which the contract required of the buyer – where therefore, Mr Brander was able to terminate the contract upon the basis of the buyer’s failure to settle on 13 February 2009, regardless of the wishes of Mrs Brander – where Mr Brander’s termination was valid and effective, before the balance price was paid to the respondent’s trust account – where the respondent received into her trust account the balance purchase price for the land on behalf of her client and the other seller in circumstances where the other seller had sent correspondence electing to terminate the contract – where the respondent had instructed the buyer’s solicitor that her client was agreeable to accepting the balance purchase monies to be paid into the respondent’s firm’s trust account – where the buyer’s solicitor transferred the balance purchase price to the respondent’s trust account – where the Queensland Civil and Administrative Tribunal dismissed an application that the respondent be disciplined for her conduct of that conveyancing matter – whether the judge constituting the tribunal referred to the correct test under s418 of the Legal Profession Act 2007 (Qld) – whether the respondent’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner – where the judge said that “[t]he sellers owed each other reciprocal duties of good faith and fair dealing not to do anything unreasonable to scuttle a genuine sale transaction” and that “[f]undamental breach or not, the husband cannot unilaterally jeopardise the sale without good cause” – where the legal basis for those observations was not explained by the judge – where more particularly, the judge did not explain why he disagreed with Mr Purcell’s analysis based upon Lion White, that Mr Brander could terminate the contract, except on the basis that “the Sellers were [not] willing and able to settle on the 13 February 2009” – where the term “unsatisfactory professional conduct” is defined by s418 of the Legal Profession Act 2007 (Qld) (LPA) – where the judge did not refer to s418 and it fairly appears that he did not apply that definition in his analysis of the respondent’s conduct – where the respondent may have thought that Mr Brander’s termination was of no effect; but it is clear that she did nothing which involved a proper assessment of that question – where she conducted no research, had apparently not encountered the problem previously and sought no advice from another practitioner – where instead, she simply went ahead in the belief that the interests of her own client would be best served by doing so – where a reasonably competent legal practitioner would have known or ascertained that she was not entitled to take steps to complete the contract over the objection of Mr Brander, which she did by calling upon the buyer to settle by paying the price to her trust account and by necessary implication from that conduct (if not expressly) releasing the buyer’s solicitor from his undertaking which had been given for the benefit of both Mr and Mrs Brander – where by her conduct, she effectively induced the buyer’s solicitor to act in breach of his undertaking to hold the transfer documents on behalf of both sellers – where her conduct fell short of the standard of competence and diligence to be expected of a reasonably competent legal practitioner. Appeal allowed. Decision of the Queensland Civil and Administrative Tribunal dated 8 August 2017 be set aside. Declare that the respondent has engaged in unsatisfactory professional conduct as alleged by the appellant. The respondent be publicly reprimanded for that conduct. The respondent pay a penalty in the sum of $1000. The respondent pay the appellant’s costs of the appeal.