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Feiglin v Ainsworth

Feiglin v Ainsworth

Case [2011] VSC 454 19 September 2011

Limitation Periods

Accrual of Cause of Action

Equitable Relief

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 03265

ESTHER CELIA FEIGLIN and	Plaintiffs
MARK FEIGLIN
- and -
Defendants
DAVID SARGON AINSWORTH and others

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2011
DATE OF JUDGMENT:	19 September 2011
CASE MAY BE CITED AS:	Feiglin v Ainsworth
MEDIUM NEUTRAL CITATION:	[2011] VSC 454

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LIMITATIONS OF ACTION ― Contract to pay commission ― Action for account base on an alleged right to information from commission payer ― Claim pleaded as breach of fiduciary obligation ― Whether statute barred ― Accrual of cause of action ― Application of statute of limitations to claims for equitable relief ― Application by analogy ― Limitation of Actions Act 1958 (No 6295) s 3(7), 5(2), 5(8).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr J F Bleechmore	Chadwicks – The Law Firm
For the Defendant	Mr S Stuckey	Dimos Lawyers

HIS HONOUR:

The dominant question in this application is whether the plaintiffs ought be given leave to amend their statement of claim to introduce an additional case in the form of an action for an account. The defendants contend leave should be refused because the proposed claim is time barred under the Limitation of Actions Act.

This is a combative family dispute over property ownership and money. The first plaintiff, Esther Feiglin, and the second plaintiff, Mark Feiglin, are husband and wife. The first defendant, David Ainsworth, is Esther’s father. In June 2010, the Feiglins commenced this proceeding claiming rights to their family home in St Kilda East in which they live. They seek a Court order that the property be transferred to them. Their claim is based on representations allegedly made to them by Ainsworth, which they say form a foundation for an acquisitive estoppel. The property has passed through the second and third defendants, being companies controlled by Ainsworth. The plaintiffs claim that the second defendant holds the home as constructive trustee, or the third defendant holds the home on a resulting trust.

The defendants say the plaintiffs have no rights to the property except as periodic tenants under arrangements which they have repudiated. The defendants counterclaim for possession of the property, and also for unpaid rent of $1 222 244 and continuing losses.

The defendants say they are ready to proceed to obtain the usual pre-trial directions and have the matter fixed for trial. But, the plaintiffs recently served a proposed amended statement of claim which seeks to add a claim for commission by Mark Feiglin against David Ainsworth his father‑in‑law. Feiglin wants to allege that he had connections and influence over people who could benefit from taxation, financial and investment advice from Ainsworth. He says that in a conversation in 1985 he and Ainsworth made an agreement, never reduced to writing, that if he introduced clients to Ainsworth then he, Ainsworth, would share with Feiglin equally the fees earned from that client. Thus, it is clear the foundation…

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 Feiglin v Ainsworth

Details

AGLC: Feiglin v Ainsworth [2011] VSC 454
Case: [2011] VSC 454
Decision Date: 19 September 2011

CaseChat Overview and Summary

Feiglin v Ainsworth is a dispute between a client and a solicitor regarding the accrual of a cause of action and the applicability of a statute of limitations. The matter was heard in the Supreme Court of Victoria. The central issue was whether a claim for an account based on an alleged right to information from a commission payer, which was pleaded as a breach of fiduciary obligation, was barred by the statute of limitations. The court had to determine the point at which the cause of action accrued and apply the statute of limitations provisions in the Limitation of Actions Act 1958.

The court examined the timeline of events and the nature of the claim to ascertain when the cause of action accrued. It considered whether the cause of action arose when the commission was paid or when the client became aware of the solicitor's alleged breach. The court also looked at whether the application of the statute of limitations to claims for equitable relief could be analogised from common law principles. Ultimately, the court found that the cause of action accrued when the commission was paid, not when the client became aware of the alleged breach. The court applied the statute of limitations provisions in the Limitation of Actions Act 1958, finding that the claim was indeed statute-barred.

The court held that the client's claim was statute-barred under sections 3(7), 5(2), and 5(8) of the Limitation of Actions Act 1958. The cause of action accrued when the commission was paid, and the client's claim was brought beyond the six-year limitation period. The court's decision was based on a careful analysis of the statutory provisions and the specific circumstances of the case. The final orders were that the defendant's application to dismiss the claim as statute-barred was successful, and the plaintiff's claim was dismissed.

Orders