Batterham v Turner Freeman - [2015] FCCA 145

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATTERHAM v TURNER FREEMAN

[2015] FCCA 145

Catchwords:
BANKRUPTCY – Application for Review of Registrar’s order for sequestration – whether debt still owing – whether other sufficient cause – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.52(1)(c), 52(2)(b)

Batterham v Goldberg [2014] FCAFC 136
Bhagat v Global Custodians Limited [2002] FCA 223
Commonwealth Bank of Australia v Quresh [2009] FMCA 1111
Corney v Brien (1951) 84 CLR 343
Rigg v Baker (2006) 155 FCR 531
Singh v Deputy Commissioner of Taxation [2011] FCA 889
Westpac Banking Corp v Goodman [2010] FMCA 993
Wren v Mahoney (1972) 126 CLR 212

Applicant:

PETER JAMES BATTERHAM

Respondent:

TERRENCE LOUIS GOLDBERG, ARMANDO GARDIMAN AND THADY BLUNDELL T/AS TURNER FREEMAN

File Number:

SYG 543 of 2014

Judgment of:

Judge Altobelli

Hearing date:

8 December 2014

Date of Last Submission:

8 December 2014

Delivered at:

Sydney

Delivered on:

20 February 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Sally Nash & Co

ORDERS

The Application for Review filed 21 November 2014 be dismissed.
The sequestration order made by Registrar Tesoriero on 13 November 2014 be affirmed.
The costs of the Respondent of and incidental to the Application for Review be taxed and paid in accordance with s.109 of the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

A.The Court notes the obligations on the Respondent Creditor to notify, enter and serve these orders in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 543 of 2014

PETER JAMES BATTERHAM

Applicant

And

TERRENCE LOUIS GOLDBERG, ARMANDO GARDIMAN AND THADY BLUNDELL T/AS TURNER FREEMAN

Respondent

REASONS FOR JUDGMENT

On 13 November 2014, Registrar Tesoriero made a sequestration order against the estate of Peter James Batterham. By way of an Application for Review filed 21 November 2014, the bankrupt asks the Court to “stay … the issue of a sequestration order … until the Summons filed … on May 6 2014 in the District Court is determined.” The bankrupt will be treated as the Applicant in the present proceedings. He represented himself. The focus will, therefore, be on substance rather than form, and attempting to discern not only what relief the Applicant sought, but the basis of this. It was not always easy to achieve this. The judgment creditors will be treated as the Respondent.
The matter has a very long litigation history, which is succinctly set out in the judgment of Justice White in the Full Court at [16] – [25] of Batterham v Goldberg [2014] FCAFC 136. There is no need to say anything further about the history of this case.
The Applicant’s Application for Review was supported by his affidavits of 7 November 2014 and 21 November 2014. The Respondent’s Notice stating grounds of opposition filed 5 December 2014 was supported by the following documents:
·Affidavit Verifying Creditor’s Petition, sworn 5 March 2014;
·Affidavit of Service, filed 6 March 2014 and 24 October 2014;
·Affidavit of Search,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batterham v Turner Freeman

Details

AGLC: Batterham v Turner Freeman [2015] FCCA 145
Case: [2015] FCCA 145
Decision Date: 20 February 2015

CaseChat Overview and Summary

In *Batterham v Turner Freeman*, the District Court of New South Wales was asked to determine whether the defendant, Turner Freeman, a law firm, had breached its duty of care to the plaintiff, Mr Batterham, by failing to advise him of the potential for a claim against his former solicitors, Turner Freeman, for negligence in relation to a previous conveyancing transaction. Mr Batterham alleged that Turner Freeman had been negligent in failing to identify and advise him about a potential claim against his previous solicitors for their negligent handling of a property transaction.

The central legal issue before the court was whether Turner Freeman owed Mr Batterham a duty of care to advise him of a potential claim against his former solicitors. This involved considering the scope of the duty of care owed by a solicitor to their client, particularly in circumstances where the solicitor is engaged to review the work of another solicitor. The court had to determine if the retainer extended to identifying and advising on potential professional negligence claims against third parties, or if it was limited to the specific conveyancing task for which Turner Freeman was engaged.

Judge Altobelli found that the retainer between Mr Batterham and Turner Freeman was limited to conducting the conveyancing transaction for the purchase of a property. The court held that there was no express or implied term in the retainer that required Turner Freeman to investigate or advise on potential negligence claims against Mr Batterham's previous solicitors. Consequently, Turner Freeman did not owe Mr Batterham a duty of care to advise him of such a claim, and therefore, no breach of duty occurred. The court dismissed Mr Batterham's claim.

Orders