Kambouris v Kiatos - [2016] VSC 276

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2007 10201

POLYXENI KAMBOURIS (also known as JENNY KAMBOURIS)	Appellant
- and -
CON KIATOS	Respondent

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2016
DATE OF JUDGMENT:	24 May 2016
CASE MAY BE CITED AS:	Kambouris v Kiatos
MEDIUM NEUTRAL CITATION:	[2016] VSC 276

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APPEAL — Appeal from Associate Judge — Whether appeal lies to Court of Appeal — Rule 77.07(1)(a) Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Referral made pursuant to rule 77.05.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Stirling	AMC Law & Associates
For the Respondent	Mr N De Young	Minter Ellison

HIS HONOUR:

On 24 May 2013 I gave judgment in favour of the plaintiff, Jenny Kambouris, against the second defendant, Con Kiatos.[1] The proceeding concerned the conduct of Kiatos, as solicitor for the plaintiff, whose position when so acting was compromised by his relationship with the first defendant, Christos Floros, now deceased, and the plaintiff’s husband, as co‑venturers in a property development project.
[1][2013] VSC 271.

The plaintiff compromised her claims against the third defendant, Ella Gorenstein, a solicitor who also provided advice and assistance to her, in connection with security given to support the project. During the course of the trial, which involved numerous adjournments, the withdrawal of some parties and the appearance of others, the plaintiff resolved her claim against Mr Floros. That left her claim against Mr Kiatos, which was summarised as follows:[2]

… on about 7 July 2005, Mr Kiatos, as her solicitor, instructed Ms Gorenstein to prepare and lodge a caveat over the property of Ms Papakostas at Loch Sport; that Mr Kiatos owed her a duty to ensure that the indemnity agreement prepared for signature by Ms Papakostas had in fact been signed, or to notify her if it had not; and that Mr Kiatos knew that his wife had not signed the agreement, and had not authorised the caveat, but failed to inform the plaintiff as his client. The plaintiff claimed to have suffered consequential loss and damage.

[2]Ibid [14].

At the conclusion of the trial, I found:[3]

The evidence given by the plaintiff and her husband conforms generally with the allegation in the plaintiff’s statement of claim that in around October 2006 and May 2007, Mr Kiatos represented to her that both mortgages continued to secure her position in respect of the borrowings by Betac. I am satisfied that Mr Kiatos was acting as the plaintiff’s solicitor at the time he gave each of the certificates, with the knowledge that his wife had not in fact executed an agreement or given a mortgage. He was, at the very least, obliged to inform the plaintiff of that fact and alert her to the risk that she only had recourse to the property of Mr Floros. By failing to so inform the plaintiff, Mr Kiatos breached his duty of care, if only to…

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 Kambouris v Kiatos

Details

AGLC: Kambouris v Kiatos [2016] VSC 276
Case: [2016] VSC 276
Decision Date: 24 May 2016

CaseChat Overview and Summary

Kambouris v Kiatos is an appeal by the first respondent against an order made by an Associate Judge in the Supreme Court. The original dispute was between the plaintiff, Mr Kambouris, and the first respondent, Mr Kiatos, concerning an alleged breach of contract and associated damages. The case was heard in the Supreme Court of Victoria, and the Associate Judge's decision was the subject of the appeal.

The primary legal issue before the Court of Appeal was whether an appeal lay from the Associate Judge's decision under Rule 77.07(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court considered the referral made under Rule 77.05 and whether it aligned with the provisions of Rule 77.07(1)(a), which pertains to the appeal process. The Court of Appeal needed to determine if the Associate Judge's decision could be appealed directly to the Court of Appeal or if the process required an intermediate step.

The Court of Appeal found that the referral made by the Associate Judge under Rule 77.05 did not automatically confer the right to appeal directly to the Court of Appeal under Rule 77.07(1)(a). Instead, the court held that the proper course was for the appeal to proceed to the Full Court of the Supreme Court, as per the ordinary rules of appellate procedure. This interpretation was based on the specific language of the rules and the legislative intent behind them. Consequently, the appeal was dismissed for want of jurisdiction.

The final order of the Court of Appeal was that the appeal by the first respondent was dismissed, and the decision of the Associate Judge remained in place. This ruling clarified the procedural path for appeals from decisions made by Associate Judges in the Supreme Court of Victoria.

Orders