Pekar v Rickards Legal - [2015] FCCA 217

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEKAR v RICKARDS LEGAL

[2015] FCCA 217

Catchwords:
BANKRUPTCY – Application for review of decision of Registrar to make a Sequestration Order – applicant seeking to re-agitate matters already dealt with in Courts or Tribunals – long history of dispute between the parties – applicant not satisfying Court he is able to pay his debts or that there is other sufficient cause not to make a Sequestration Order – application for review dismissed.

Legislation:
Federal Court (Bankruptcy) Rules 2005 , r.4.06
Bankruptcy Act 1966, ss.43, 44, 44(1)(b)(ii), 44(1)(c), 52(1), 52(2)

Cain v Whyte (1933) 48 CLR 639
Ling v Enrobook Pty Ltd (1997) 74 FCR 19

Applicant:

FIMA PEKAR

Respondent:

RICKARDS LEGAL

File Number:

MLG 1675 of 2014

Judgment of:

Judge Burchardt

Hearing date:

16 December 2014

Date of Last Submission:

16 December 2014

Delivered at:

Melbourne

Delivered on:

12 February 2015

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Rickards

Solicitors for the Respondent:

Rickards Legal

ORDERS

Further compliance with r.4.06 of the Federal Court (Bankruptcy) Rules 2005 be dispensed with.
The orders made by Registrar Caporale on 2 October 2014 are affirmed.
The application for review is dismissed.
The costs of the petitioning creditor be paid out of the estate of the bankrupt in accordance with the Bankruptcy Act 1966.

THE COURT NOTES THAT:

(a)The date of the act of bankruptcy is 25 July 2014.
(b)A consent to act as Trustee has been signed by Matthew Terence Gollant and Timothy Mark Shuttleworth Holden.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1675 of 2014

FIMA PEKAR

Applicant

And

RIKARDS LEGAL

Respondent

REASONS FOR JUDGMENT

Introductory

On 2 October 2014, Registrar Caporale made a Sequestration Order against the estate of Fima Pekar on a Petition filed on 14 August 2014 by Rickards Legal. The matter presently before the court is Mr Pekar’s application to review the decision of the Registrar, filed on 20 October 2014.
The applicant has been self‑represented throughout what appears to be an extremely extensive process of litigation with the respondent, and the grounds set out in the application for review and subsequently in various materials filed by the applicant are by no means entirely easy to follow. Nonetheless, I have come to the clear conclusion that Mr Pekar’s points are all misconceived, and for the reasons that follow, I am going to affirm the orders made by Registrar Caporale.
Before coming to the review itself, it is appropriate briefly to review the materials filed in the proceedings from time to time.

The Materials Filed

On 14 August 2014, as already indicated, the creditor’s Petition was filed. The affidavit verifying the Petition, the affidavit verifying paragraph 4 of the Petition and the affidavit of service of the Bankruptcy Notice are unremarkable.
On 26 September 2014, the applicant (as he now is and as I will continue to refer to him) filed his Notice of Appearance and Notice of Opposition. The Notice of Opposition referred the reader 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.

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Details

Case: [2015] FCCA 217
Decision Date: 12 February 2015

CaseChat Overview and Summary

In *Pekar v Rickards Legal*, the County Court of Victoria considered a dispute between the plaintiff, Mr. Pekar, and the defendant law firm, Rickards Legal. Mr. Pekar alleged that Rickards Legal had breached their retainer agreement by failing to properly advise him on the implications of a settlement offer in previous litigation. He claimed that this failure led to him accepting a settlement that was less advantageous than it would have been had he received adequate advice, and sought damages for the loss he allegedly suffered.

The central legal issue before the court was whether Rickards Legal had breached its duty of care to Mr. Pekar by failing to provide competent and diligent advice regarding the settlement offer. This involved determining the scope of the retainer and the standard of care expected of a solicitor in advising a client on settlement negotiations, particularly concerning the potential consequences of accepting or rejecting an offer. The court also had to assess whether any such breach caused Mr. Pekar quantifiable loss.

Judge Burchardt found that Rickards Legal had not breached its duty of care. The court concluded that the advice provided by the firm was reasonable in the circumstances, and that Mr. Pekar had been adequately informed of the risks and benefits associated with the settlement offer. The judge noted that the client ultimately makes the decision regarding settlement, and that the firm had acted within the bounds of professional competence in presenting the options and their likely outcomes. Consequently, the court found no basis for Mr. Pekar's claim for damages.

Orders