Milutinovic v Vardas - [2005] NSWSC 1333

CITATION:
MILUTINOVIC v VARDAS [2005] NSWSC 1333
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 May 2005

JUDGMENT DATE :

19 December 2005

JUDGMENT OF:
Hulme J at 1

DECISION:
See paragraph 53

PARTIES:
Nenad Milutinovic
George John Vardas

FILE NUMBER(S):
SC 20113/2004

COUNSEL:
Plaintiff: E Wasilenia
Defendant: B Shields

SOLICITORS:
Plaintiff: Bruce Hocking
Defendant: Ebsworth & Ebsworth

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Monday, 19 December 2005

20113/2004

Nenad MILUTINOVIC v George John VARDAS

JUDGMENT

1 HIS HONOUR: On 18 May 2005, I heard applications in two somewhat associated matters. In one Coshott and Anor v Vardas, CL 20531/2002 I made orders and delivered reasons for them on the day. These reasons relate to two applications in the second matter.

2 The first of these applications arises pursuant to a Notice of Motion filed by the Defendant on 15 October 2004 in which orders were sought, inter alia:-

1. That the Statement of Claim be dismissed pursuant to Part 13 Rule 5 of the Supreme Court Rules.

2. That, alternatively, the Statement of Claim be struck out pursuant to Part 15 Rule 26 of the Supreme Court Rules.

3. That the Plaintiff’s Notice to Produce dated 23 September 2004 be set aside.

3 The second of the applications was one made on behalf of the Plaintiff without filing a Notice of Motion for leave to amend the Statement of Claim in accordance with a document annexed to an affidavit of the Plaintiff’s solicitor. That document includes a substantial number of changes to the Statement of Claim. Most are cosmetic or minor but where the changes are of substance I shall refer to them in addition to the allegations in the original document.

4 The Statement of Claim was filed on 13 April 2004. It alleged in effect that the Defendant was a solicitor, that in about July 1991 he had received from the Plaintiff’s previous solicitor the file relating to some proceedings that the Plaintiff had commenced against his former employer, the Commonwealth of Australia and that on or about 17 May 1992 the Plaintiff first met Vardas, was told that the latter had taken over the file and the Plaintiff gave Vardas instructions to act on the Plaintiff’s behalf. The document also included the following:-

Duty of Care

Fiduciary Duties

(a) To account promptly, properly and fully for all monies received by him from or on the Plaintiff’s behalf;

(b) To apply monies received by him from the Plaintiff as directed by the Plaintiff;

(d) 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 Milutinovic v Vardas

Details

AGLC: Milutinovic v Vardas [2005] NSWSC 1333
Case: [2005] NSWSC 1333
Decision Date: 19 December 2005

CaseChat Overview and Summary

Nenad Milutinovic commenced proceedings against George John Vardas, seeking damages for professional negligence and breach of fiduciary duties. Milutinovic alleged that Vardas, as his solicitor, failed to properly conduct proceedings against the Commonwealth of Australia and advise Milutinovic of his right to appeal the decision. Milutinovic also claimed that Vardas misappropriated funds he provided for legal fees and costs. Vardas sought to dismiss the claim, arguing it was statute-barred and denied any wrongdoing. The court had to determine whether the claim was time-barred under the Limitation Act and whether Milutinovic had a valid claim for the misappropriation of funds. The court found that the claims for damages relating to the conduct of the proceedings against the Commonwealth and the advice on appeal were time-barred under the Limitation Act. The court also determined that Milutinovic had a valid claim for the misappropriation of funds, as Vardas had used Milutinovic's money for his own benefit. The court calculated the potential recovery for Milutinovic to be approximately $10,000, considering the unjust enrichment Vardas enjoyed from the misappropriation of funds. The court ordered the proceedings to be transferred to the Local Court and permitted Milutinovic to file an amended statement of claim in accordance with the court's reasons.

Orders