BOLDEN & WOODRUFF

[2018] FCCA 1439

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOLDEN & WOODRUFF [2018] FCCA 1439

Catchwords:
FAMILY LAW – Setting aside a binding financial agreement. The joinder of the Applicant’s solicitor who gave advice in relation to the signing of the binding financial agreement.

CONSUMER PROTECTION – Joinder of a solicitor in relation to a claim for misleading and deceptive conduct.

JURISDICTION – The Court has original jurisdiction in relation to both setting aside a binding financial agreement and a claim for misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth).

Legislation:

Competition and Consumer Act 2010 (Cth), ss.82, 87

Family Law Act 1975 (Cth), s.90UD

Federal Court Rules 2011 (Cth)

Applicant: MS BOLDEN

Respondent: MR WOODRUFF

File Number: BRC 1766 of 2016

Judgment of: Judge Cassidy

Hearing date: 16 April 2018

Date of Last Submission: 14 May 2018

Delivered at: Brisbane

Delivered on: 6 June 2018

REPRESENTATION

Counsel for the Applicant: Mr George of Counsel

Solicitors for the Applicant: Holloway Jenkins

Counsel for the Respondent: Mr Haddrick of Counsel

Solicitors for the Respondent: Chris Toogood Legal

Counsel for the Objecting Third Party: Mr Summers of Counsel

Solicitors for the Objecting Third Party: TDT Lawyers

ORDERS

1. That leave be granted for Mr Tony Tran of TDT Lawyers to be included as a third party in this proceeding.

2. That the parties file pleadings (or amended pleadings) in accordance with the Federal Court Rules.

3. That this matter be adjourned for mention only at 9:30am on 25 September 2018 in the Federal Circuit Court of Australia at Brisbane.

4. That all parties’ costs be reserved.

IT IS NOTED:

A.It is requested that the Court give consideration to listing this matter for final hearing with priority.

IT IS NOTED that publication of this judgment under the pseudonym Bolden & Woodruff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1766 of 2016

MS BOLDEN

Applicant

And

MR WOODRUFF

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in this matter resided in a de facto relationship for approximately eleven years. On 11 February 2015, the Applicant, Ms Bolden (“the wife”), entered into a Binding Financial Agreement (“BFA”) on 11 February 2015 pursuant to section 90UJ of the Family Law Act 1975 (Cth) (“the FLA”). It is the case that Mr Tony Tran (“Mr Tran”), was the solicitor for the wife who signed the s.90UJ certificate.

2. The wife now seeks to set aside that agreement according to her pleading because inter alia, she was not provided with advice on the agreement or advice on the advantages and disadvantages of the agreement. Mr Woodruff (“the husband”), has filed an Application in a Case seeking to join the solicitor, Mr Tran as the Second Respondent in the proceedings initiated by the wife to set aside the BFA.

The wife’s claim

1. This is a matter where the parties were required to file pleadings. The wife pleads in her statement of claim at paragraphs 17 to 26:

   “17. On or about 11 February 2015, the Applicant attended the offices of the Respondent’s solicitors and:

   (1) Was given the agreement by the Respondent’s solicitors;

   (2) Was told by the Respondent’s solicitors to bring the agreement back to that office after signing the same;

   (3) Was told by the Respondent’s solicitors that an appointment had been made for her to attend on Tony Tran, lawyer, of TDT Lawyers at 141 Inala Avenue, Inala in the State of Queensland;

   (4) Was not told by the Respondent’s solicitors why an appointment had been made for her with Tony Tran;

   (5) Was not told by the Respondent’s solicitors why she should attend on Ton Tran.

   18. The offices of TDT Lawyers are across the road form the building in which the offices of the Respondent’s lawyers are situated.

   19. At no time was the Applicant informed by:

   (1) The Respondent to obtain independent legal advice regarding the draft agreement or the agreement;

   (2) The Respondent’s solicitors to obtain independent legal advice regarding the draft agreement or the agreement;

   (3) Tony Tran that the purpose of the Applicant’s appointment with him was for her to obtain independent legal advice regarding the draft agreement or the agreement.

   20. On or about 11 February 2015, the Applicant:

   (1) Attended on Tony Tran at his office for approximately twenty (20) minutes;

   (2) Handed the draft agreement to Tony Tran;

   (3) Was asked by Tony Tran words to the effect of whether she would like him to read the agreement;

   (4) Told Tony Tran words to the effect that she did not need him to read the agreement for her;

   (5) Told Tony Tran words to the effect that she wanted him to witness her signature to the agreement;

   (6) Signed the draft agreement at the places indicated by Tony Tran.

   21. On 11 February 2015, Tony Tran:

   (1) Purported to execute a certificate pursuant to s90UG Family Law Act 1975.

   (2) Indicated to the Applicant where she should sign that certificate;

   (3) Did not advise the Applicant as to the terms or effect of that certificate.

   22. At no time prior to or after signing the agreement did Tony Tran provide advice to the Applicant as to:

   (1) The nature and terms of the draft agreement;

   (2) The legal implications for her entering of entering into the draft agreement;

   (3) The effect of the draft agreement on her rights at law;

   (4) The consequences and effect of the draft agreement on the property interests of the parties;

   (5) The advantages and disadvantages for her, as at 11 February 2015, of the draft agreement.

   23. On 11 February 2015, the Applicant delivered to the Respondent’s solicitors the draft agreement which she had signed that day.

   24. On or about 12 February 2015, the Respondent:

   (1) Attended on Cally Tam;

   (2) Signed the draft agreement;

   (3) Gave instructions to Cally Tam of T Lawyers Pty Ltd to provide to the Applicant a copy of the signed agreement.

   25. On or about 12 February 2015, the Applicant and Respondent entered into an agreement purported to be pursuant to s90UD Family Law Act 1975 (the “Financial Agreement”).

   26. On or about 6 May 2015, the Respondent’s solicitors provided a copy of the Financial Agreement to the Applicant by email.”

2. The question of fact and law that arises from the pleading is whether Mr Tran gave the required advice to the wife.

The husband’s claim against Mr Tran

1. The husband seeks to join Mr Tran as the Second Respondent. The claim is for damages pursuant to s.82 and or s.87 of the Competition and Consumer Act 2010 (Cth) (“the CCA”), interest and costs. The Husband relies on the allegations of the wife that Mr Tran did not provide the wife with the requisite advice required under the FLA.

2. The husband relied on Mr Tran’s certificate and now makes the claim for damages if the BFA is set aside because of Mr Tran’s “advice” to the wife.

Jurisdiction

1. The Federal Circuit Court of Australia (“the FCCA”), has original jurisdiction to deal with all of the claims of the Applicant and the Respondent. The FCCA also has original jurisdiction to deal with claims by the Respondent husband against the wife’s solicitor Mr Tran, to the extent they are pursuant to the CCA.

2. I consider that the claim for misleading and deceptive conduct with respect to the way Mr Tran carried out his professional duties and “the advice” given to the Applicant is in substance based on the same facts and circumstances as the claim to set aside the BFA because of the failure of the wife’s solicitor to provide her with the required advice. The commonality of factual circumstances exists, giving rise to the wife’s claim against the husband and the husband’s claim against the wife’s solicitors.

Joinder

1. I am satisfied that the questions of law and fact in the various transactions that are the basis of the claims are sufficiently related to permit joinder of the claims in these proceedings.

2. I therefore grant the Respondent leave to join the wife’s solicitor Mr Tran as the third party. I will Order that the parties file pleadings (or amended pleadings) in accordance with the Federal Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  6 June 2018