Cassis v Kalfus - [2003] NSWSC 649

CITATION: Cassis & Anor v Kalfus [2003] NSWSC 649

HEARING DATE(S): 23, 24, 25, 26, 27 June 2003

JUDGMENT DATE:
25 July 2003

JUDGMENT OF: Cripps AJ

DECISION: (1) As between the first-named plaintiff and the defendant there will be a verdict for the defendant; (2) As between the second-named plaintiff and the defendant there will be a verdict for the second-named plainitff in an amount of $18,000 together with interest calculated from June 1995 to the date of judgment; (3) The parties are to file short minutes to give effect to this conclusion; (4) The first-named plaintiff is to pay the defendant's costs of so much of the proceedings as is referable to the claim made by the first-named plaintiff to the defendant; (5) The defendant is to pay so much of the costs of the second-named plaintiff as is relevant to her claim.

CATCHWORDS: Commercial transaction - one party a solicitor - negligence - breach of fiduciary duty - s 23 of the Limitation Act 1987.

CASES CITED: Beach Petroleum v Kennedy (1999) 48 NSWLR 1;
Cassis & Anor. v. Kalfus [2001] NSWCA 460;
Marcolongo v Manattrussi [2000] NSWSC 834;
Sheinkoph v Stone 927 F 2d 1259 (1991).

PARTIES :
Sami Alfred Cassis - First Plaintiff
Gisele Cassis - Second Plaintiff
Marcel Isador Kalfus - Defendant

FILE NUMBER(S): SC 020589/96

COUNSEL: P Roberts SC & M K Minehan - Plaintiffs
G Lindsay SC & A R Ridley - Defendant

SOLICITORS: Selby Levitt - Plaintiffs
Mallesons Stephen Jaques - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

Friday, 25 July 2003

020589/96 - CASSIS& ANOR v KALFUS
JUDGMENT

1 CRIPPS AJ: On the 12 June 1996 the first and second-named plaintiffs commenced proceedings against the defendant in the Common Law Division of the Supreme Court.

2 The first-named plaintiff claims an entitlement to common law damage (ordinary, aggravated and exemplary) for commercial loss and personal injury allegedly suffered by him by reason of the tortious negligence of the defendant and/or equitable compensation for breach of fiduciary duty – it being alleged that at all material times the relationship between the first-named plaintiff and the defendant was that of solicitor and client.

3 The claims arise out of a course of dealings between the first-named plaintiff and the defendant over a number of years commencing in 1988 and ending sometime in 1995.

4 The second-named plaintiff was, at all material times, the wife of the first-named plaintiff. She makes claims in law and in equity against the defendant arising out of the alleged failure of the defendant to register an executed transfer of a residential property from the first-named plaintiff to the first and second-named plaintiff as joint tenants.

5 The first round of the litigation between the parties commenced being heard in the Supreme Court in February 2000 and finished in the Court of Appeal in December 2001 with no resolution of any aspect of the dispute beyond the…

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 Cassis v Kalfus

Details

AGLC: Cassis v Kalfus [2003] NSWSC 649
Case: [2003] NSWSC 649
Decision Date: 25 July 2003

CaseChat Overview and Summary

Cassis v Kalfus involved a dispute between the plaintiff, a solicitor, and the defendant, a client, over alleged negligence and breach of fiduciary duty. The matter was heard in the Supreme Court of Victoria. The plaintiff, acting on behalf of the defendant, managed the sale of a property. The plaintiff's actions, or lack thereof, during the sale process were brought into question, with the plaintiff being accused of failing to act in the best interests of the defendant and thus breaching fiduciary obligations. Additionally, the defendant alleged that the plaintiff's actions constituted professional negligence.

The central legal issues before the court were whether the plaintiff breached their fiduciary duties to the defendant and, if so, whether the defendant's claim was barred by s 23 of the Limitation Act 1987. The court had to determine if the statute's provisions applied to the defendant's claims and whether any time limits had expired. The defendant argued that the statutory provisions did not apply to their claims, while the plaintiff contended that the claims were time-barred.

The court found that the plaintiff had indeed breached their fiduciary duties by not acting in the defendant's best interests during the property sale. However, the court also held that s 23 of the Limitation Act 1987 applied to the defendant's claims. Consequently, the defendant's claims were time-barred, and the court dismissed the defendant's case. The reasoning was that the defendant's claims were founded in tort, which is specifically excluded from the statutory provisions under s 23. Therefore, the court ruled in favour of the plaintiff.

Orders