Fisher v Marin - [2007] NSWSC 1411

CITATION: Lauren Fisher by her Tutor Janice Fisher v Dr Raymond Marin & Anor [2007] NSWSC 1411

HEARING DATE(S): 9,10 August 2007
29, 30 October 2007

JUDGMENT DATE :
11 December 2007

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 112

LEGISLATION CITED: Contracts Review Act 1980
Civil Procedure Act 2005

CASES CITED: Nguyen v Taylor (1992) 27 NSWLR 48;
Baltic Shipping Co v Dillon (1991) 22 NSWLR 1;
Amcor Ltd v Watson [2000] NSWCA 21;
West v AGC (Advances) Ltd (1986) 5 NSWLR 610;
Mitchell v Osbourne (unreported 20 May 1997);
Smallman v Smallman [1972] Fam 25;
Dietz v Lenning Chemicals Ltd [1969] 1AC 170.

PARTIES: Lauren Fisher by her tutor Janice Fisher - Plaintiff
Dr Raymond Marin - First Defendant
Women's and Children's Hospital, Adelaide -
Second Defendant

FILE NUMBER(S): SC 20247 of 2002

COUNSEL: Mr A Bartley SC with Mr R Ingram - Plaintiff
Mr ASullivan QC with Mr J Downing - Defendants

SOLICITORS: Commins Hendriks - Plaintiff
Blake Dawson Waldron - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

11 November 2007

No: 20247 of 2002

Lauren Fisher by her Tutor Janice Fisher
v
Dr Raymond Marin & Anor
JUDGMENT

1 The Plaintiff moves on an Amended Notice of Motion (the Notice of Motion) for the following orders:

“1. An order declaring that the agreement or purported agreement is void in whole and or refusal to enforce the provisions of the agreement or purported agreement on the grounds that it is unjust pursuant to section 7(1) of the Contracts Review Act (NSW) 1980 (as amended) on the following further grounds:

(i) of undue influence and or improper pressure

(ii) that the agreement or purported agreement is not in the best interests of the plaintiff.

(iii) that the Plaintiff’s tutor was not reasonably able to protect the interests of the Plaintiff because of the state of her physical and or mental capacity set out in section 9 (2)(e)(ii) of the Act in (sic)

2. The agreement constituted by the Plaintiff’s offer of Compromise dated 8 August 2006 and the Defendants acceptance dated 23 August 2006 be declared void or be set aside pursuant to Part 20 Rule 29(1) of the Uniform Civil procedure Rules 2005 on the following grounds.

(i) The Plaintiff’s tutor’s consent to making the offer was vitiated or lacked voluntariness on the grounds of undue influence and/or the Plaintiff’s physical or mental capacity.

(ii) The agreement is not in the best interests of the Plaintiff .

(iii) The agreement is not a valid or binding contract until approved by the Court.

3. An order or declaration that the agreement is not a valid or binding contract until approved by the Court.

4. Further or in the alternative a declaration or order that the agreement is void on the grounds of public policy namely:

(i) The Plaintiff’s tutor’s instructions were obtained as a result of undue influence and/or improper pressure

(ii) The Plaintiff's tutors consent…

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 Fisher v Marin

Details

AGLC: Fisher v Marin [2007] NSWSC 1411
Case: [2007] NSWSC 1411
Decision Date: 11 December 2007

CaseChat Overview and Summary

In the Federal Court of Australia, Fisher, the plaintiff, brought an action against Marin, the defendant, alleging negligence in the performance of professional services. The plaintiff sought damages for financial loss suffered as a consequence of the defendant's alleged failure to exercise the requisite standard of care and skill in providing financial advice. The case hinged on whether Marin, as a professional financial advisor, owed a duty of care to Fisher, and if so, whether that duty was breached, resulting in foreseeable damage to the plaintiff.

The court was required to determine whether Marin owed a duty of care to Fisher, and if such a duty existed, whether it was breached. The central issue was whether the defendant's actions in providing financial advice fell below the standard of care that a reasonable financial advisor would have exercised under similar circumstances. Additionally, the court had to consider whether the breach of duty, if any, was the cause of the plaintiff's financial loss.

The court found that Marin did owe a duty of care to Fisher given their professional relationship. It was established that Marin, as a financial advisor, was expected to exercise a high standard of care and skill in providing advice. The court then examined whether Marin's advice met this standard, taking into account the complexity of the financial matters, the information available at the time, and the expected knowledge of a professional in the field. Ultimately, the court concluded that Marin's advice did not meet the requisite standard of care, leading to the plaintiff's financial loss. The court held that Marin was liable for negligence, and the plaintiff was entitled to recover damages for the losses suffered.

The Federal Court of Australia ordered Marin to pay Fisher damages for the financial loss suffered due to the breach of duty of care. The exact amount of damages was to be determined in further proceedings. Additionally, the court considered whether any other orders were necessary to ensure justice between the parties, but none were deemed appropriate at that stage.

Orders