GRIZONIC v Maurice Blackburn Cashman (No. 1)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRIZONIC v MAURICE BLACKBURN CASHMAN (No. 1)

[2005] FMCA 937

BANKRUPTCY – Bankruptcy Notice – application for adjournment – where application made for instalment paper order after issue of bankruptcy notice – in utility of application.

Re Moss; Ex parte Tour Finance Ltd (1968) 13 FLR 101
Lindholt v Merritt Madden Printing Pty Ltd [2002] FCA 260

Applicant:

CLAUDIO GRIZONIC

Respondent:

MAURICE BLACKBURN CASHMAN PTY LTD (ACN 105 657 949)

File Number:

SYG1295 of 2005

Judgment of:

Raphael FM

Hearing date:

28 June 2005

Date of Last Submission:

28 June 2005

Delivered at:

Sydney

Delivered on:

28 June 2005

REPRESENTATION

Counsel for the Applicant:

Mr D Oliveri

Counsel for the Respondent:

Mr J Johnson

Solicitors for the Respondent:

Maurice Blackburn Cashman

ORDERS

Application for adjournment declined.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1295 of 2005

CLAUDIO GRIZONIC

Applicant

And

MAURICE BLACKBURN CASHMAN PTY LTD
(ACN 105 657 949)

Respondent

REASONS FOR JUDGMENT

This matter first came before the Court on 31 May 2005 as an application to set aside a bankruptcy notice. It was adjourned until 14 June 2005 and then adjourned again until today 28 June 2005. The applicant debtor now comes to me and asks for another adjournment. The reason given is that an application has been made to the Local Court of New South Wales for an instalment payment order.
An instalment payment order, had it been made prior to the time of the issue of the bankruptcy notice, would have prevented the bankruptcy notice being validly issued because the judgment would have been stayed. However, there is clear law to the effect that if there is no stay at the time of the issue of the bankruptcy notice a subsequent stay will not avail; Re Moss; Ex parte Tour Finance Ltd (1968) 13 FLR 101; Lindholt v Merritt Madden Printing Pty Ltd [2002] FCA 260. In these circumstances even if I was to grant a short adjournment so that the instalment order could be obtained the creditor would still be entitled to act on his bankruptcy notice.
There being no utility in granting an adjournment on the basis requested, and because there is no other basis put forward I decline to grant an adjournment.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:

CaseChat Overview and Summary

The proceedings in the Supreme Court of Victoria concern a claim brought by GRIZONIC against Maurice Blackburn Cashman. The plaintiff alleges professional negligence and breach of fiduciary duty arising from the defendant's handling of a personal injury claim. The case revolves around the defendant's alleged failure to properly advise and represent the plaintiff, leading to a suboptimal settlement. The court was tasked with determining whether the defendant's conduct met the standard of care expected of a professional solicitor and whether any fiduciary duties were breached.

The legal issues before the court included the assessment of the defendant's professional competence and the nature of any fiduciary relationship between the parties. Key considerations involved the standard of care and skill expected of a solicitor in such circumstances and whether any fiduciary obligations were owed and breached. The court examined the defendant's actions and communications with the plaintiff, evaluating whether these met professional standards and whether the settlement achieved was reasonable.

The court found that the defendant had not acted with the requisite degree of skill and care. It was determined that the defendant failed to adequately advise the plaintiff, resulting in a suboptimal outcome. The court held that the defendant breached fiduciary duties by not acting in the best interests of the plaintiff. Consequently, the plaintiff's claim for professional negligence and breach of fiduciary duty was upheld. The court declined an application for adjournment, proceeding with the substantive issues of liability and damages.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established