Collins v Ardalich No. Scgrg-97-14 Judgment No. S6673

[1998] SASC 6673

COLLINS v ARDALICH

Full Court
Coram: Prior, Olsson and Williams JJ

Williams J:

This is an appeal by the plaintiff against a final judgment of a District Court Judge in terms of reasons delivered on 11 December 1996 whereby the appellant's claim was dismissed. 

The present respondent acted as solicitor for the appellant, who in the present action claims an accounting in respect of moneys which Collins caused to be placed in Ardalich's trust account.  In about April 1990, the appellant consulted the respondent for advice concerning his commercial activities and thereafter retained Mr Ardalich in connection with a number of transactions, including a negotiation to purchase the Adelaide Market Plaza complex.  The trial Judge identified eight separate types of matters in which Mr Ardalich acted, including the handling of false pretences charges for Mr Collins, matrimonial matters and commercial transactions.  The appellant was on home detention upon his release from prison at the time of giving the instructions concerning a substantial house purchase in 1990, when he was an undischarged bankrupt.  According to the appellant he was entitled to obtain his release from bankruptcy in December 1990.  Mr Collins took steps to acquire a shelf company using his own nominees as directors.  He gave the name Cabbform Pty Ltd to this company, which purchased the house abovementioned at north Adelaide in which Mr Collins took up residence.  After purchasing the North Adelaide house, Cabbform had a balance in hand of more than $34000 towards the end of 1990, and these moneys were paid to Mr Ardalich and placed in trust in the appellant's name.  There is nothing to suggest that the appellant had any rights to these moneys.  Mr Ardalich's trust account shows the receipt of $34459.95 on 14 November 1990 and thereafter various disbursements, including profit costs withdrawn by Mr Ardalich. 

In the present proceedings, the appellant sought an accounting from the respondent only on the appellant's own behalf.  For this purpose, the appellant challenged the respondent's right to costs, bearing in mind alleged breaches of professional duty by the respondent to the appellant.  The trial Judge found that the defendant had fully accounted for moneys received from the plaintiff.   While the appellant now wishes to challenge this conclusion, he faces two major hurdles.  Firstly, the trial Judge has found that the abovementioned amount of $34459.95 was not the appellant's money and therefore should not be the subject of an account from which Mr Collins could derive any personal benefit.  Secondly, despite this conclusion, the trial Judge has made a finding in which he has identified all moneys coming to the hands of Mr Ardalich and he has examined the respondent's dealings with those moneys, in all $52459.  This amount includes the amount of $34459.95 to which I have previously referred. 

After evaluating the conflicting evidence, the trial Judge has made detailed findings to support his calculations that there has been a proper accounting by the respondent. The general principle is that ordinarily the appeal court should uphold the trial Judge on issues turning on an evaluation of contradictory evidence unless it is shown that the trial Judge failed to use or palpably misused his advantage in having seen and heard the witnesses or has acted on evidence which was inconsistent with facts incontrovertibly established or which was glaringly improbable [Devries v Australian National Railways Commission (1992-1993) 177 CLR 472]. In the light of that principle, there is little scope in the present case for the appellant to dispute the trial Judge's findings which are adverse to the appellant. The findings provide a comprehensive accounting review leading to a finding that the amount of the respondent's entitlement for proper charges and disbursements exceeded the moneys which the respondent had received from the appellant. There is no basis upon which this court should interfere with that finding, having regard to the trial Judge's advantage to which I have referred.

I observe the trial Judge made particular findings affecting the credit of the appellant.  To the extent that the appellant now wishes to rely upon his own version of events, these findings do nothing to enhance the argument which the appellant now wishes the court to consider.  The trial Judge proceeded on the basis that the respondent could justify fees and disbursements to the extent of $57,987 against the amount of $52,459 abovementioned.  There is a difference between the two figures of $5,528.  The appellant is wrong when he asserts that the trial Judge disallowed all work relating to the companies in respect of which the respondent was instructed, whereas the trial Judge in fact only disallowed the direct costs of incorporation.  Even if some discrepancy could be identified as alleged by the appellant in his written and oral argument, the amount would be insufficient to require the respondent to be called upon to further account to the appellant in view of the cushion, if I may call it that, of $5,528 to which I have already referred. 

The appellant has sought to raise on this appeal a question of damage to which he claims to be entitled.  There is nothing in the findings of the trial Judge to support any such claim, which he specifically addressed.  The appellant is unable to demonstrate any error in the judgment under appeal.  In my view, the appeal should be dismissed. 

PRIOR J:   I agree. 

OLSSON J:       I also agree. 

PRIOR J:   The order of the court therefore is:  appeal dismissed.