Maytom v Warren McKeon Dickson Solicitors Pty Ltd - [2013] FCCA 1009

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYTOM v WARREN MCKEON DICKSON SOLICITORS PTY LTD & ORS

[2013] FCCA 1009

Catchwords:
BANKRUPTCY – Application for stay of execution of writ of possession – application denied.

Legislation:
Bankruptcy Act 1966, s.153B.
Federal Circuit Court Rules 2001, r.29.11

Applicant:

GARY MAYTOM

First Respondent:

WARREN MCKEON DICKSON SOLICITORS PTY LTD

Second Respondent:

JACKSON LALIC LAWYERS

Third Respondent:

MAXWELL WILLIAM PRENTICE

File Number:

SYG 355 of 2013

Judgment of:

Judge Altobelli

Hearing date:

25 July 2013

Date of Last Submission:

25 July 2013

Delivered at:

Sydney

Delivered on:

25 July 2013

REPRESENTATION

The Applicant (self-represented, assisted by Ms Taylor)

Solicitors for the Respondents:

Sally Nash & Co

ORDERS

The Interim Application filed 24 July 2013 be dismissed.
The Applicant Trustee’s costs of the Interim Application filed on 24 July 2013 be costs in the administration of the estate.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 355 of 2013

GARY MAYTOM

Applicant

And

WARREN MCKEON DICKSON SOLICITORS PTY LTD

First Respondent

JACKSON LALIC LAWYERS

Second Respondent

MAXWELL WILLIAM PRENTICE

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By way of an application filed 24 July 2003, Gary Maytom, who is a bankrupt, seeks orders of an interlocutory nature. The effect of the orders he seeks is that the execution of a writ of possession, which relates to the property in which he resides and which is to be executed tomorrow, be stayed until further order of the court.
His litigation guardian, Ms Taylor, was able to explain in a more fulsome manner that, in effect, if a stay of 42 days would be granted, during that period, Mr Maytom would make an application to seek leave to appeal against the sequestration order that was made. The application by Mr Maytom is supported by his affidavit sworn and filed on 24 July 2013. A writ of possession has been filed and Mr Maytom has been given notice to vacate. He needs to vacate by 12 noon tomorrow, that is, Friday 26 July 2013.
I am informed, and I accept, that the trustee has made preparations to take occupation of the property, assuming the trustee can execute the writ of possession. Mr Maytom was represented by Ms Taylor as his case guardian. I must say, Ms Taylor, who I understand is his daughter, would be one of the most articulate case guardians that I have experienced in my time on the bench. Ms Nash appears on behalf of the trustee and opposes the granting of the stay.
There is a considerable amount of background material to which I have had reference. There are three judgments of Driver FM that are dated 6 March 2012, 8 November 2012 and 4 March 2013, and I will simply incorporate those judgments into these my ex tempore reasons. It would appear that on 6 March 2012, his Honour made a sequestration order noting that the act of bankruptcy was 15 November 2011. The respondent debtor appeared, sought an adjournment and was declined…

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: [2013] FCCA 1009
Decision Date: 25 July 2013

CaseChat Overview and Summary

In the District Court of New South Wales, the applicant, Maytom, brought proceedings against the respondent, Warren McKeon Dickson Solicitors Pty Ltd, alleging professional negligence. The dispute arose from the respondent's conduct in acting for the applicant in a previous litigation matter.

The primary legal issue before the court was whether the respondent had breached its duty of care to the applicant by failing to advise the applicant of the potential for a costs order against them in the previous litigation, and whether this failure caused the applicant loss. The court was required to determine the scope of the solicitor's duty to inform their client about potential adverse costs consequences.

Judge Altobelli found that a solicitor's duty of care extends to advising a client on the foreseeable risks of litigation, including the risk of an adverse costs order. The court held that the respondent had failed to adequately discharge this duty by not clearly explaining the potential for the applicant to be ordered to pay the other side's costs. This failure was found to be a breach of the respondent's professional obligations. The court concluded that the applicant had suffered loss as a result of this breach, as they were subsequently ordered to pay a significant sum in costs.

The court ordered that the respondent pay damages to the applicant in an amount to be assessed.

Orders