JUDGE:	Osborn JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2019, 1–3, 6, 9–10 May 2019
DATE OF JUDGMENT:	7 June 2019
CASE MAY BE CITED AS:	Orwin v Rickards
MEDIUM NEUTRAL CITATION:	[2019] VSC 375

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PROFESSIONAL NEGLIGENCE – Claim against solicitor arising out of financial agreement between parties purportedly in a de facto relationship – Family Law Act 1975 (Cth) – Financial agreement allegedly defective by reason of s 90UC – Limitation defence with respect to consequential losses claimed – Threshold fact of continuing de facto relationship not established – Discussion of claim for loss of opportunity if primary conclusion wrong – Family Law Act 1975 (Cth) pt VIIIAB – Wrongs Act 1958 pt IVAA – Limitation of Actions Act 1958 s 5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Schlicht	Vasilaras + Co Lawyers
For the First Defendant	Mr P Cawthorn QC with Ms M Smallwood	Lander and Rogers
For the Second Defendant	Dr A Dinelli	Minter Ellison

HIS HONOUR:

Introduction

On 9 October 2009 the Plaintiff (‘Ms Orwin’) engaged the First Defendant (‘Mr Rickards’) to advise her and prepare a binding financial agreement between herself and her former de facto partner (‘Mr Sarah’). Ms Orwin’s instructions to Mr Rickards were that although she and Mr Sarah lived in the same premises at 1 Murchison Street, East St Kilda, they were not in a de facto relationship. On 22 December 2009, Mr Rickards briefed the Second Defendant (‘Ms Ilias’) to advise on a proposed agreement and forwarded a draft to her. Ms Ilias provided advice to Mr Rickards that day and a marked-up version of the proposed agreement by fax the following day.

An agreement (‘the financial agreement’) was subsequently signed by Ms Orwin and Mr Sarah on 12 March 2010. By then, and upon the instructions of Ms Orwin and Mr Sarah, the financial agreement had been amended to include an acknowledgement that the parties were still in a de facto relationship. Certificates annexed to the financial agreement recorded that Ms Orwin had received independent legal advice from Mr Rickards and Mr Sarah had received independent legal advice from the Third Defendant, a solicitor (‘Mr Connor’).

It was a matter of contention during the trial as to whether the parties were still in a de facto relationship at the date of the financial agreement or whether the relationship had in fact ended some years earlier. In any event Ms Orwin and Mr Sarah separated completely in 2011 and, in March 2015, Mr Sarah brought an application in the Federal Circuit Court of Australia (‘FCC’) seeking to set aside the financial agreement on grounds of non-disclosure, duress, undue influence and unconscionable conduct and seeking an order for the just and equitable alteration of property interests.

In…

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 Orwin v Rickards

Details

AGLC: Orwin v Rickards [2019] VSC 375
Case: [2019] VSC 375
Decision Date: 7 June 2019

CaseChat Overview and Summary

Orwin v Rickards involved a claim against a solicitor, arising from a financial agreement between the parties who were purportedly in a de facto relationship. The case was heard in the Supreme Court of Victoria. The plaintiff, Orwin, alleged that the defendant, Rickards, was negligent in his professional capacity, leading to significant financial losses due to the defective nature of the financial agreement under the Family Law Act 1975 (Cth).

The primary legal issue was whether the defendant's negligence could be established, particularly focusing on the threshold fact of a continuing de facto relationship. The court also considered whether the defendant's limitation defence applied to the consequential losses claimed by the plaintiff. Additionally, the court needed to address the claim for loss of opportunity if the primary conclusion regarding the de facto relationship was incorrect. The Family Law Act 1975 (Cth) pt VIIIAB, the Wrongs Act 1958 pt IVAA, and the Limitation of Actions Act 1958 s 5 were key legislative instruments in the court's analysis.

The court found that the threshold fact of a continuing de facto relationship was not established, thereby precluding the primary claim for professional negligence. Consequently, the limitation defence was upheld for the consequential losses claimed. The court also noted that even if the primary conclusion about the de facto relationship were wrong, the claim for loss of opportunity would still not succeed. The court's decision underscored the importance of establishing the threshold fact of a continuing de facto relationship for the claim to proceed.

The final orders reflected the court's findings, dismissing the plaintiff's claims and upholding the defendant's limitation defence. The court concluded that the plaintiff's claims were contingent on establishing the continuing de facto relationship, which was not substantiated in this case.

Orders