Charles Delius Somerville Alexander and Ors (t/as Minter Ellison) v Perpetual Trustees WA Limited (ACN 008 666 886) and Perpetual Trustee Company Limited (ACN 000 001 007) [2001] NSWCA 240

Charles Delius Somerville Alexander and Ors (t/as Minter Ellison) v Perpetual Trustees WA Limited (ACN 008 666 886) and Perpetual Trustee Company Limited (ACN 000 001 007) [2001] NSWCA 240

The exclusion clauses did not absolve the solicitors from liability because their breaches were conscious, deliberate, and in bad faith, with no honest belief that their actions were for the benefit of the beneficiaries. The clauses only protect compliance with the agreement, not blatant breach. There was no co-ordinate liability between the solicitors and Perpetual to support a right of contribution, as their obligations were not of the same nature and extent.

Parties
Appellants: Charles Delius Somerville Alexander and Ors (t/as Minter Ellison); 1st Respondent: Perpetual Trustees WA Limited (ACN 008 666 886); 2nd Respondent: Perpetual Trustee Company Limited (ACN 000 001 007)
Jurisdiction
Australia
Judgment Date
30 July 2001
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal dismissed with costs
Legal Topics
Exclusion Clauses, Breach of Trust, Duty of Care, Conflict of Interest, Contribution Between Wrongdoers, Construction of Contractual Terms
Contract Negligence Equity Exclusion Clauses Breach of Trust Duty of Care Conflict of Interest Contribution Between Wrongdoers +1 more

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Parties

Charles Delius Somerville Alexander and Ors (t/as Minter Ellison)

Appellants

Perpetual Trustees WA Limited (ACN 008 666 886)

1st Respondent

Perpetual Trustee Company Limited (ACN 000 001 007)

2nd Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether exclusion clauses in the Subscription Agreement protect the solicitors from liability for breach of trust and negligence
  2. 2 Whether the solicitors acted in good faith or with honest belief that their conduct was for the benefit of beneficiaries
  3. 3 Whether there was a right of contribution between Perpetual and the solicitors

Ratio Decidendi

The exclusion clauses did not absolve the solicitors from liability because their breaches were conscious, deliberate, and in bad faith, with no honest belief that their actions were for the benefit of the beneficiaries. The clauses only protect compliance with the agreement, not blatant breach. There was no co-ordinate liability between the solicitors and Perpetual to support a right of contribution, as their obligations were not of the same nature and extent.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs.