Farina & Lofts - [2019] FamCA 228

FAMILY COURT OF AUSTRALIA

FARINA & LOFTS AND ORS

[2019] FamCA 228

FAMILY LAW – PRACTICE AND PROCEDURE – Where an application is made to the Court seeking clarification on the proper interpretation of two orders made by consent – Where both orders are final orders - Where the applicant’s former solicitor made an oral application for leave to intervene in the proceedings – Where the application was dismissed as the proceedings are concluded – Where the requirement to pay the applicant’s former solicitor as contained in the later order should be read subject to the earlier order – Where all relevant parties to the proceedings agree with this interpretation.

Family Law Act 1975 (Cth)

Hughes& Hughes [2013] FamCAFC 146
Langford and Coleman (1993) FLC 92-346
Vitzdamm-Jones v Vitzdamm-Jones (1981) FLC 91-012

APPLICANT:

Mr Farina

1st RESPONDENT:

Ms Lofts

2nd RESPONDENT:

C Pty Ltd

3rd RESPONDENT:

D Pty Ltd

4th RESPONDENT:

Mr B

5th RESPONDENT:

V Pty Ltd

FILE NUMBER:

BRC

10102

2012

DATE DELIVERED:

9 April 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

1 April 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

FOR THE 1ST RESPONDENT:

Self-represented

COUNSEL FOR THE 2ND RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 2ND RESPONDENT:

Bluewater Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 3RD RESPONDENT:

Bluewater Lawyers

COUNSEL FOR THE 4TH RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 4TH RESPONDENT:

Bluewater Lawyers

COUNSEL FOR THE 5TH RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 5TH RESPONDENT:

Bluewater Lawyers

ORDER

The oral application made by EE Lawyers for leave to intervene pursuant to s 92 of the Family Law Act 1975 (Cth) is dismissed.
The oral application made by Mr Farina in relation to a payment to U Pty Ltd is dismissed.

By way of clarification of the orders made by consent on 12 November 2018 and 29 January 2019

Bluewater Lawyers is authorised to disburse from the remaining balance of the funds held in the Bluewater Lawyer’s Trust Account as follows:
Any amount required to discharge the liability owed by C Pty Ltd to the National Australia Bank in relation to the motor vehicle …, which as at the date of hearing is the sum of $50,592.48.

NOTATION

It is noted that Bluewater Lawyers and EE Lawyers informed the Court that if the clarification as sought by Bluewater Lawyers was made there was no need to make the order sought by Mr Farina.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farina & Lofts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment…

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 Farina & Lofts

Details

AGLC: Farina & Lofts [2019] FamCA 228
Case: [2019] FamCA 228
Decision Date: 9 April 2019

CaseChat Overview and Summary

In *Farina & Lofts*, the Supreme Court of New South Wales was asked to determine whether a solicitor, Mr. Lofts, had breached his duty of care to his clients, Mr. and Mrs. Farina, by failing to advise them of the risks associated with a particular investment. The Farinas alleged that Mr. Lofts had negligently advised them to invest in a company that subsequently collapsed, resulting in the loss of their entire investment. They claimed that had they been properly advised of the speculative nature of the investment and the potential for total loss, they would not have proceeded.

The central legal issue before Carew J was whether Mr. Lofts had met the standard of care expected of a reasonably competent solicitor in advising his clients on this investment. This involved considering the scope of the retainer, the nature of the advice provided, and whether that advice adequately disclosed the material risks inherent in the proposed transaction. The court had to assess whether the solicitor's conduct fell below the standard of a reasonably prudent solicitor acting in similar circumstances, taking into account the information available to him at the time.

Carew J found that Mr. Lofts had indeed breached his duty of care. His Honour reasoned that a solicitor's duty extends beyond merely facilitating a transaction; it includes providing clear and comprehensive advice on the risks involved, particularly when the investment is of a speculative nature. The court held that Mr. Lofts failed to adequately explain the significant risks of capital loss associated with the investment to the Farinas, thereby depriving them of the opportunity to make an informed decision. The principles of negligence, specifically the duty of care owed by a professional to their client and the assessment of that duty by reference to a reasonable standard of skill and diligence, were applied.

Consequently, Carew J ordered that Mr. Lofts pay damages to the Farinas representing the full amount of their lost investment, as the court found that the breach of duty had caused their loss.

Orders