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More on when lawyers engage in ‘trade and commerce’

June 6th, 2010 · No Comments

In Seachange Management Pty Ltd v Madgwicks, [2010] VCAT 599, Senior Member Vassie decided that solicitors who allegedly falsely wrote to the Registrar of Titles advising that proceedings had been instituted to substantiate the claim of their client, a caveator, did not engage in trade and commerce even if the conduct was misleading and deceptive:

’23.  So, when deciding whether a solicitor who writes and sends a letter is engaging in conduct “in trade or commerce”, one must consider the context in which the letter was written and sent and the nature of the person to whom the letter was sent. When a client retains a solicitor, and the solicitor deals with the client, the relationship is a commercial one and the dealing takes place in a commercial context. When the solicitor writes a letter or otherwise acts in accordance with the client’s instructions, the solicitor does so because that commercial relationship exists. It does not follow, however, that the solicitor is engaging in conduct “in trade or commerce” by writing the letter or otherwise acting in accordance with the instructions.

24. The context in which Madgwicks wrote the letter and sent it to the Registrar of Titles was the statutory framework of section 89A of the Transfer of Land Act whereby the Registrar is required to give a particular kind of notice to a caveator and to act upon another particular kind of notice that proceedings to substantiate a caveator’s claim are on foot. The letter was designed to set in train and did set in train the Registrar’s performance of a statutory function. That kind of interaction between the solicitor and the Registrar did not bear a trading or commercial character.

28.  In the present case, the communication from Madgwicks to the Registrar of Titles was neither completing nor furthering a commercial transaction. The context was not commercial. The context was the statutory obligation cast upon a public statutory appointee, the Registrar of Titles, when given notice of the kind that the communication gave. The activity of giving that notice, to enliven the performance of the statutory obligation, did not bear a trading or commercial character. By making the communication Madgwicks were not engaging in conduct “in trade or commerce.”’

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Tags: VCAT Act