Malcolm Douglas Carr trading as Forshaws Neill v. Swart & Ors.; Lawcover Pty. Limited v. Swart & Anor. [2007] NSWCA 337

Malcolm Douglas Carr trading as Forshaws Neill v. Swart & Ors.; Lawcover Pty. Limited v. Swart & Anor. [2007] NSWCA 337

Mr. Carr breached clause 4 of the Joint Venture Funds Management Agreement by failing to ensure receipt and verification of a bank guarantee prior to transfer of Mr. Swart's funds; however, the liability arising from this breach was not incurred in connection with the practice of a solicitor as defined by the Lawcover professional indemnity policy, as the JVA constituted an entrepreneurial activity outside the scope of covered legal services.

Parties
Appellant/respondent: Malcolm Douglas Carr trading as Forshaws Neill; Respondent: Daniel Frederick Victor Swart; Respondent: Janet Anne Swart; Respondent/appellant: Lawcover Pty. Limited
Jurisdiction
Australia
Judgment Date
27 November 2007
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
Mr. Carr's appeal dismissed; Lawcover's appeal allowed. Orders below set aside in relation to Lawcover, proceedings against Lawcover dismissed with costs.
Legal Topics
Professional Indemnity Policy, Breach of Contract, Solicitor's Liability, Joint Venture Agreement
Contract Insurance Legal Practitioners Professional Indemnity Policy Breach of Contract Solicitor's Liability Joint Venture Agreement

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Parties

Malcolm Douglas Carr trading as Forshaws Neill

Appellant/respondent

Daniel Frederick Victor Swart

Respondent

Janet Anne Swart

Respondent

Lawcover Pty. Limited

Respondent/appellant

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether Mr. Carr breached the Joint Venture Funds Management Agreement with Mr. Swart
  2. 2 Whether Mr. Carr's liability for damages was incurred in connection with the practice of a solicitor for the purposes of his professional indemnity policy
  3. 3 Whether the joint venture agreement was a contract to provide legal services

Ratio Decidendi

Mr. Carr breached clause 4 of the Joint Venture Funds Management Agreement by failing to ensure receipt and verification of a bank guarantee prior to transfer of Mr. Swart's funds; however, the liability arising from this breach was not incurred in connection with the practice of a solicitor as defined by the Lawcover professional indemnity policy, as the JVA constituted an entrepreneurial activity outside the scope of covered legal services.

Court Disposition

Mr. Carr's appeal dismissed; Lawcover's appeal allowed. Orders below set aside in relation to Lawcover, proceedings against Lawcover dismissed with costs.

Orders

  • Mr. Carr's appeal dismissed.
  • Mr. Carr to pay Mr. Swart's costs of the appeal.