Firns v Tzovaras - [2006] NSWSC 925

CITATION: Firns v Tzovaras [2006] NSWSC 925

HEARING DATE(S): 1 September 2006

JUDGMENT DATE :
11 September 2006

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: Discovery ordered as in para [48]. Orders as sought in para 2 of the notice of motion. The plaintiff is to pay the defendant's costs of the notice of motion.

LEGISLATION CITED: Uniform Civil Procedure Rules, Pt 21, r 21
Evidence Act, ss 118, 122

CASES CITED: Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297
Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267
Idoport Pty Limited v National Bank (3) [1999] NSWSC 1026
Jones v Monte Video Gasco (1880) 5 QBD 556
Lakatoi Universal Pty Limited v Walker (unreported, Rolfe J, 31 July 1998)
Mulley v Manifold (1959) 103 CLR 341
Proctor & Gamble Australia Pty Limited v Medical Research Pty Limited [2001] NSWSC 183
Telstra Corporation Limited v BT Australasia Pty Limited (1998) 85 FCR 152

PARTIES: Charles Magnus Firns (Plaintiff)
Ted Dorotheos Tzovaras (Defendant)

FILE NUMBER(S): SC 20114/02

COUNSEL: C. Locke (Plaintiff)
M. Dicker (Defendant)

SOLICITORS: Oliveri Attorneys (Plaintiff)
Mallesons Stephen Jaques (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Monday 11 September 2006

20114/02 CHARLES MAGNUS FIRNS v TED DOROTHEOS TZOVARAS
JUDGMENT

1 HIS HONOUR: The defendant in this cause is seeking by way of notice of motion orders as to further discovery. That claim is resisted by the plaintiff.

2 Broadly, the proceedings between the parties are proceedings in which the plaintiff, Charles Magnus Wade Firns, sues the defendant, Ted Dorotheos Tzovaras, for professional negligence. The plaintiff is the youngest son of the late Ronald Douglas Firns (the deceased). In his amended statement of claim the plaintiff has pleaded that the deceased consulted the defendant "in or about November or December 1997" to advise him in respect of, and to revise his will, and to advise in relation to an appropriate ownership structure of assets which the deceased either owned or controlled. It is pleaded that the deceased owned a property at 6 Emmett Street, Crows Nest and that he had interests in various companies identified in para 6 of the amended statement of claim.

3 It is pleaded that the defendant prepared a Deed of Settlement between the deceased as settler and Cavavass Pty Limited as trustee dated 23 December 1997. The defendant also prepared the deceased's will dated 23 December 1997. The deceased died shortly after the will was executed.

4 In para 20 of the amended statement of claim the defendant's duty is expressed as being a duty to exercise reasonable skill and care:

(a) to draft the deceased's will in a manner which effected the instructions of the deceased in relation to his intended bequests;

(b) to draft the documentation for the establishment of the Cavavass Trust in a manner which effected the instructions of the deceased;

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.

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Details

Case: [2006] NSWSC 925
Decision Date: 11 September 2006

CaseChat Overview and Summary

The case of Firns v Tzovaras is a professional negligence action brought by Charles Magnus Firns against Ted Dorotheos Tzovaras, who was retained by the plaintiff's father, Ronald Douglas Firns, to revise his will and establish a trust. The plaintiff claims that Tzovaras failed to exercise reasonable skill and care in drafting the will and trust documentation, resulting in loss and damage. The current dispute pertains to the discovery of documents relevant to the case, with Tzovaras seeking further discovery from Firns.

The legal issues before the court were whether further discovery should be ordered and if so, what form the order should take. Studdert J considered the relevance of the documents in question, the history of discovery in the case, and the arguments for and against the defendant's request for further discovery. The judge found that the plaintiff had not fully complied with earlier orders for discovery and that the documents sought by Tzovaras were relevant to the issues at hand.

The court ruled in favour of the defendant, ordering the plaintiff to provide further discovery of documents in several categories, including those related to the administration of the estate, the transfer and sale of property, and the corporations involved in the case. Additionally, the court ordered the plaintiff to provide documents concerning the legal advice he received, finding that privilege had been lost due to the nature of the issues in the case.

The final orders of the court were that the plaintiff provide verified discovery of the specified documents by a certain date, that the plaintiff file an affidavit detailing the steps taken to locate and discover the documents, and that the plaintiff pay the defendant's costs of the notice of motion.

Orders