Feiglin v Ainsworth (No. 2) - [2013] VSC 83

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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 MARK FEIGLIN	Plaintiffs
v
DAVID SARGON AINSWORTH and ors (according to attached schedule)	Defendants

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2012
DATE OF JUDGMENT:	5 March 2013
CASE MAY BE CITED AS:	Feiglin v Ainsworth (No. 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 83

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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:

In June 2010, the plaintiffs commenced this proceeding claiming rights to their family home in St Kilda East in which they live. The plaintiffs sued Esther Feiglin’s father, David Ainsworth (‘Ainsworth’), and companies which he controlled. The proceeding came on before Mukhtar AsJ on an application by the plaintiffs for leave to amend their statement of claim to introduce an additional cause of action in the form of an action for an account.[1] Mukhtar AsJ set out the substance of the then existing claim and that of the proposed amended claim. I do not need to repeat the substance of each of the claims save to note in relation to the proposed added claim, the plaintiffs alleged that Ainsworth owed fiduciary duties to the second defendant (‘Feiglin’) to account to him and, more particularly, to inform him whether he had rendered services and fees to clients whom Feiglin had introduced to Ainsworth.[2]
[1]Feiglin v Ainsworth [2011] VSC 454.
[2]Feiglin v Ainsworth at [6].

It was contended that the fiduciary obligations arose out of an arrangement between Ainsworth and Feiglin which had commenced in 1986 whereby Feiglin would introduce a third party to Ainsworth with the intention that Ainsworth might provide services to that third party. In the event that Ainsworth provided services, Ainsworth was required to remit to Feiglin an equal share of the fees earned.

The plaintiffs allege that in or about 1991 or 1992, Feiglin introduced a client to Ainsworth pursuant to the arrangements between them and such introduction resulted in Ainsworth being remunerated in the region of $5,000,000.[3]
[3]Further amended statement of claim filed pursuant to the order of Mukhtar AsJ made 19 September 2011, paragraph 8S.

Mukhtar AsJ refused the plaintiffs’ application to amend. His Honour made the following observations:[4]

It is by application of those principles and authorities that I would refuse to grant leave to amend the statement of claim. The proposed commission claim arises out of a matter that occurred more than six years before the commencement of this action. It was 18 years ago. Further if there was to be any doubt about the construction of s 5(2) of the Limitation of Actions Act, I would hold that the proposed action for account is not truly based on a breach of fiduciary duty but based upon an obligation to account under the contract as alleged. The six year limitation would…

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 (No. 2)

Details

AGLC: Feiglin v Ainsworth (No. 2) [2013] VSC 83
Case: [2013] VSC 83
Decision Date: 5 March 2013

CaseChat Overview and Summary

In this case, the plaintiffs, Esther and Mark Feiglin, sued David Sargon Ainsworth and his companies for alleged breaches of fiduciary duties and commission agreements. The plaintiffs claimed that Ainsworth owed them commissions from services rendered to clients introduced by the plaintiffs. The defendants argued that the plaintiffs' claims were statute-barred under the Limitation of Actions Act 1958. The defendants applied for summary judgment on the commission claim, arguing that the plaintiffs' right of action was complete before the statute's limitation period had expired.

The court considered whether the plaintiffs' claims for an account and damages for breach of fiduciary duties were statute-barred. The court found that the plaintiffs had sufficient information to bring their claims in 1995 and 1996, well within the limitation period. The court also held that the plaintiffs' claims for equitable relief were not exempt from the limitation period. The court concluded that the plaintiffs had no real prospect of success in prosecuting their commission claim and granted judgment for the defendants. The court also refused the plaintiffs' application to amend the prayer for relief.

Orders