Dekkan v Evans

Case [2008] FCA 1004

FEDERAL COURT OF AUSTRALIA

Dekkan v Evans [2008] FCA 1004

BANKRUPTCY – application to set aside a bankruptcy notice – applicant claimed to have a set-off, counter-claim or cross demand against former solicitors for professional negligence – no prima facie case or fair chance of success – application dismissed

Bankruptcy Act 1966 (Cth) s 40(1)(g)

Brink, Re; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433 applied
Dekkan v Picciau [2008] NSWCA 18 referred to
Glew, Re; Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331 applied
Makhoul v Barnes (1995) 60 FCR 572 referred to
Wren v Mahony (1972) 126 CLR 212 referred to

BASSAM DEKKAN v VIVIAN EVANS & JOSEPH ANTOUN PRACTISING AS UTHER WEBSTER & EVANS, VIVIAN EVANS AND ZOE RAMSAY
NSD 266 OF 2008

JACOBSON J
3 JULY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 266 of 2008

BETWEEN:

BASSAM DEKKAN
Applicant

AND:

VIVIAN EVANS & JOSEPH ANTOUN
PRACTISING AS
UTHER WEBSTER & EVANS
First Respondent

VIVIAN EVANS
Second Respondent

ZOE RAMSAY
Third Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

3 JULY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application to set aside the bankruptcy notice be dismissed.

2.The applicant to pay the costs of the respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 266 of 2008

BETWEEN:

BASSAM DEKKAN
Applicant

AND:

VIVIAN EVANS & JOSEPH ANTOUN
PRACTISING AS
UTHER WEBSTER & EVANS
First Respondent

VIVIAN EVANS
Second Respondent

ZOE RAMSAY
Third Respondent

JUDGE:

JACOBSON J

DATE:

3 JULY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. Mr Bassam Dekkan seeks an order setting aside Bankruptcy Notice NN 0324/08 served on 17 February 2008.  The notice was issued upon the basis of a number of judgments obtained in the Local Court by Uther Webster & Evans, Solicitors, for outstanding legal fees.   The amount of the judgments totalled approximately $46,000.

  2. Mr Dekkan appeared in person on the application. The substance of his claim to set aside the bankruptcy notice was that he had a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debts in accordance with s 40(1)(g) of the Bankruptcy Act 1966 (Cth).

  3. The effect of Mr Dekkan’s claim is that the solicitors were negligent in the advice they gave him as to how he should seek to set aside an adverse judgment obtained against Mr Dekkan by a Mrs Picciau in the District Court.  He also claimed that Ms Vivian Evans, a partner in the firm of solicitors, had failed, unreasonably, to assist him by giving evidence in an appeal from the District Court judgment.

  4. In addition, Mr Dekkan alleged that the solicitors had made charged amounted to improper fees for the handling of a local court proceeding against Mrs Picciau, which involved a claim for an apprehended violence order.

  5. Mr Dekkan made…

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Details
AGLC
Dekkan v Evans [2008] FCA 1004
Case
[2008] FCA 1004
Decision Date

CaseChat Overview and Summary

In the matter of Dekkan v Evans, the primary concern was the alleged inadequate preparation by Mr Johnson, Mr Dekkan's solicitor, and the subsequent physical and emotional distress experienced by Mr Dekkan. This distress culminated in Mr Dekkan's admission to St Vincent’s Hospital on 26 October 2006, which was highlighted in the medical evidence presented. The Court of Appeal examined whether there was a denial of procedural fairness due to Mr Johnson’s alleged unpreparedness, but ultimately found that this ground of appeal was not substantiated. Basten JA acknowledged the significant issues raised but noted that it was within the trial judge’s discretion to determine Mr Dekkan's fitness to attend court despite his condition and the lawyer's preparation.

The court further considered Mr Dekkan’s claim that Ms Evans, his former solicitor, failed to assist him in the Court of Appeal after ceasing to act for him. Ms Evans's firm claimed that a substantial amount was owed in unpaid professional fees, and she was only willing to assist if subpoenaed or if those fees were paid. Ms Evans did not receive a subpoena and declined to assist unless her costs were settled. This matter was further complicated by an offer from Mr Dekkan to pay a portion of the owed fees, which Ms Evans deemed insufficient. The court addressed Mr Dekkan’s additional grievances regarding a Local Court proceeding he filed against Mrs Picciau for an apprehended violence order, and his dissatisfaction with having to pay for legal services despite the unsuccessful outcome.

Mr Dekkan's claims for damages centred around the alleged misconduct and misrepresentation by Ms Evans, which he asserted resulted in losses of $38,000 for loss of rent and $100,000 for the inability to sell a property in Bankstown. The court evaluated these claims in the context of the broader issues of procedural fairness and legal representation. Ultimately, the court dismissed the application to set aside the bankruptcy notice and ordered Mr Dekkan to pay the respondents' costs.

Orders

Orders of the court

1. The application to set aside the bankruptcy notice be dismissed.

2. The applicant to pay the costs of the respondents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J
Basten JA described at [30]ff the medical evidence relating to Mr Dekkan’s admission to St Vincent’s Hospital on 26 October 2006. His Honour stated at [34] that when Mr Dekkan attended Court on that day, he (Mr Dekkan) formed the view that Mr Johnson was not adequately prepared to run the case and this was placing Mr Dekkan at severe risk of an adverse judgment. These matters brought on Mr Dekkan’s physical and emotional distress.The judgment of the Court of Appeal The principal ground of appeal considered by the Court was that there was a denial of procedural fairness. The Court considered that this ground was not made out. Nevertheless, Basten JA stated that “significant issues were raised” which warranted careful consideration. Leave was granted but the appeal was dismissed. The effect of his Honour’s reasons was that the trial judge was mindful of the prejudice to Mr Dekkan but it was open to him to find that Mr Dekkan was fit to attend court. Basten JA observed at [51] that there was no doubt that Mr Dekkan was in an invidious position at the trial. He was unwell and his solicitor was unprepared. But, ordinarily, the failure of a lawyer to prepare for a hearing cannot be a ground of adjournment.The claim that Ms Evans did not assist Mr Dekkan Mr Dekkan claimed that Ms Evans failed to assist him by providing an affidavit and other assistance for the Court of Appeal after she had ceased to act. The request for Ms Evans’s assistance came from Mr Dekkan’s new solicitor, Mr Lofitis. He sought, in particular, an affidavit from Ms Evans denying a conversation that was apparently an issue in the Court of Appeal. Mrs Evans’s position was that her firm was owed a substantial amount for costs and, while she was not prepared to assist generally unless her costs were paid, she would give evidence if subpoenaed. Her evidence was that she was not served with a subpoena. The evidence before me includes a letter from Ms Ramsay to Mr Dekkan on 12 June 2007, apparently before Mr Lofitis commenced to act, declining to act for Mr Dekkan unless outstanding professional fees were paid. An offer from Mr Dekkan to pay $12,000 was said to be insufficient.The Local Court proceeding Mr Dekkan’s evidence was that, in January 2007, he filed a claim in the Bankstown Local Court against Mrs Picciau for an apprehended violence order. The proceeding was apparently filed before Mr Dekkan retained the services of Uther Webster & Evans. Ms Ramsay advised Mr Dekkan to retain the services of a barrister, Mr Katsinas, to represent Mr Dekkan in the Local Court. Mr Katsinas was to appear without Ms Ramsay instructing him as this would be cheaper for Mr Dekkan. Mr Dekkan’s complaint is that he was unsuccessful in the Local Court proceeding but that he still had to pay Mr Katsinas. In addition, he did not see why he also had to pay Uther Webster & Evans for their work in relation to the Bankstown Local Court matter. Mr Dekkan’s claims for damages Mr Dekkan claims that due to Ms Evans’s “performance, misconduct and misrepresentation” of him, he suffered various losses arising from his inability to obtain possession of the Bankstown unit from Mrs Picciau. The losses are said to be $38,000 for loss of rent and $100,000 for inability to sell the property.

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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