JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9, 10, 11, 12, 15, 16, 17 February 2016
DATE OF JUDGMENT:	30 May 2016
CASE MAY BE CITED AS:	Lakic v Prior
MEDIUM NEUTRAL CITATION:	[2016] VSC 293

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REAL PROPERTY — Caveats — Plaintiff sought removal of a caveat lodged on title to notify an interest under an equitable charge securing payment of fees due to the defendant for legal services — Finding that equitable charge validly obtained — Ground for removal of caveat not made out.

NEGLIGENCE — Solicitor’s negligence — Solicitor missed date for commencement of common law proceedings for plaintiff’s injuries sustained in car accident — Plaintiff successfully sought extension and prosecuted common law claim — Damages awarded for costs incurred in seeking extension of time application.

DAMAGES — Solicitor’s negligence — Damages claimed for pain and suffering, stress, anxiety and damage to health due to solicitor’s actions — Whether stress, anxiety and damage to health is ‘injury’ under s 28 LE of the Wrongs Act 1958 (Vic) such that a certificate or determination of ‘significant injury’ is required as a condition for recovering damages — No determination or certificate obtained under Part VBA of the Wrongs Act 1958 (Vic) — Thomas v Powercor Australia Ltd (Damages ruling) [2011] VSC 586 and Insight Vacations Pty Ltd v Young (2010) 268 ALR 570 considered — Claims dismissed.

SET-OFF — Equitable set-off — Rule 13.14 Supreme Court (General Civil Procedure) Rules 2015 — Whether statutory rule alters substantive law — Whether existing judgment debt in another court could be set off against an entitlement to unliquidated damages — Claim and cross-claim sufficiently connected to permit equitable set-off.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Plaintiff appeared in person
For the Defendant	Mr S McGregor	Obst Legal

TABLE OF CONTENTS

Introduction and issues..................................................................................................................... 1

Procedural matters and rulings on evidence................................................................................. 5

Other accidents.............................................................................................................................. 5
Family-member damages............................................................................................................ 6
Gynaecological injury.................................................................................................................. 6

Findings on credit............................................................................................................................ 11

Chronology of key events.............................................................................................................. 12

October 2002: file record........................................................................................................... 12
September 2005: commencement of 2005 retainer................................................................ 13
21 March 2006: settlement of home help claim...................................................................... 14
15 May 2006: missing the commencement deadline............................................................ 16
13 July 2007: proceeding for s 23A and s 93 applications filed........................................... 17
10 April 2008: the equitable charge......................................................................................... 18
15 April and 9 May 2008: adjournments of the County Court hearing.............................. 20
23 June 2008: TAC ‘walk away’ offer....................................................................................... 21
24 October 2008: trial further adjourned................................................................................ 23
February 2009: failure to attend second appointment with Dr Nathar.............................. 24
23 March 2009: notice of ceasing to act................................................................................... 25
9 December 2010: telephone call.............................................................................................. 26
2011 - 2012:Magistrates’ Court debt proceedings................................................................ 27

Issues for decision............................................................................................................................ 28

(a) Should the caveat be removed?............................................................................................... 28

(b) Does Mr Prior have an advocate’s immunity defence?....................................................... 30

(c). What loss was caused by failure to commence a…

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 Lakic v Prior

Details

AGLC: Lakic v Prior [2016] VSC 293
Case: [2016] VSC 293
Decision Date: 30 May 2016

CaseChat Overview and Summary

Lakic v Prior was a case involving the removal of a caveat on a property title, the negligence of a solicitor, and claims for damages and equitable set-off. The plaintiff sought to have a caveat removed that had been lodged to notify an interest under an equitable charge. This charge secured payment of fees owed to the defendant, the solicitor, for legal services provided to the plaintiff. The dispute involved whether the equitable charge was validly obtained, whether the solicitor’s negligence in missing a statutory deadline resulted in damages, and whether the plaintiff's claims for damages for stress and anxiety required a certificate of significant injury, as well as the application of equitable set-off in relation to a pre-existing judgment debt.

The court considered whether the equitable charge was validly obtained, thus justifying the removal of the caveat. It also examined whether the solicitor's failure to commence proceedings within the statutory period for the plaintiff's personal injuries constituted negligence, and if so, whether damages for pain, suffering, stress, anxiety, and health damage were recoverable. The court further assessed whether the plaintiff's claims for non-physical injuries required a certificate of significant injury as per statutory provisions, and whether an existing judgment debt could be set off against an entitlement to unliquidated damages.

The court found that the equitable charge was validly obtained and therefore the ground for removal of the caveat was not made out. Regarding the negligence claim, while the solicitor's actions were negligent, the court determined that the plaintiff could not recover damages for stress, anxiety, and health damage without a certificate of significant injury. The court also held that the statutory rule regarding set-off did not alter the substantive law and that the connection between the claims was sufficient to permit equitable set-off, allowing the pre-existing judgment debt to be offset against the unliquidated damages.

The final orders of the court dismissed the claims for damages for stress, anxiety, and health damage, and allowed the claim for equitable set-off. The caveat was not removed, and the plaintiff’s claims for non-physical injury damages were dismissed without a certificate of significant injury. The judgment debt in another court was set off against the unliquidated damages owed.

Orders