Pekar v Rickards Legal (No 3) - [2017] FCCA 1196

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEKAR v RICKARDS LEGAL (No.3)

[2017] FCCA 1196

Catchwords:
PRACTICE AND PROCEDURE – Vexatious litigation – application pursuant to s.88Q – where Applicant has made 20 applications against the Respondent on same subject matter – where Respondent has been awarded 11 costs orders against the Applicant – Applicant declared a vexatious litigant.

Legislation:

Federal Circuit Court of Australia Act 1999, s.88Q

Bankruptcy Act 1966 (Cth), s.153B(1)

Cases cited:

Holden in His Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22
Pekar v Rickards Legal [2015] FCCA 2888

Applicant:

FIMA PEKAR

Respondent:

RICKARDS LEGAL

File Number:

MLG 2171 of 2016

Judgment of:

Judge Hartnett

Hearing date:

13 April 2017

Delivered at:

Melbourne

Delivered on:

7 June 2017

REPRESENTATION

The Applicant:

No appearance

Solicitor for the Respondent:

Mr Rickards

Solicitors for the Respondent:

Rickards Legal

THE COURT DECLARES THAT the Applicant, Mr Fima Pekar, is a vexatious litigant.

THE COURT ORDERS THAT:

Pursuant to s.88Q(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) the Applicant, Mr Fima Pekar, is prohibited from instituting proceedings in the Federal Circuit Court of Australia other than proceedings under the Family Law Act 1975 (Cth).
The Applicant, Mr Fima Pekar, pay to the Respondent costs in the sum of $5,000. Such costs are to be paid out of the bankrupt estate of the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2171 of 2016

FIMA PEKAR

Applicant

And

RICKARDS LEGAL

Respondent

REASONS FOR JUDGMENT

On 28 October 2015 the Court made orders and delivered reasons for judgment in respect of an application filed by the Applicant, on 17 July 2015, wherein he sought that the sequestration order made on 2 October 2014 against the estate of Fima Pekar be annulled pursuant to s.153B(1) of the Bankruptcy Act 1966 (Cth). Mr Pekar’s application was dismissed. Prior to that time, as set out in the published reasons of the Court,[1] Mr Pekar had engaged in extensive litigation. He has continued to engage in such litigation.
[1] Pekar v Rickards Legal [2015] FCCA 2888.
The proceeding before the Court now, is the Respondent’s application for an order that Mr Pekar be declared a vexatious litigant pursuant to s.88Q of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the Act’). The Applicant is clearly on notice as to the proceedings before the Court, the Respondent having set out the orders he seeks from the Court in paragraph 2 of his affidavits affirmed the 6 April 2017 and the 12 April 2017. This followed Mr Pekar being put on notice, on 3 November 2016, that the Respondent intended to seek the orders now sought by him, in Mr Rickard’s making of an oral application in the same terms, and in the presence of Mr Pekar.
The Respondent relies on three affidavits of evidence. Those affidavits are an affidavit of evidence in chief affirmed the 6 April 2017 by Mr Rickards, and two affidavits affirmed the 12…

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: [2017] FCCA 1196
Decision Date: 7 June 2017

CaseChat Overview and Summary

In *Pekar v Rickards Legal (No 3)*, the Supreme Court of Queensland considered a dispute between the plaintiff, Mr. Pekar, and the defendant law firm, Rickards Legal. The proceedings concerned allegations of misleading and deceptive conduct and breach of contract arising from the firm's conduct in relation to a property transaction.

The central legal issues before the Court were whether Rickards Legal had engaged in misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) and the *Property Law Act 1974* (Qld), and whether the firm had breached its contractual obligations to Mr. Pekar. The Court was required to determine the nature and extent of the representations made by the firm and whether these representations were false or misleading, and to assess whether the firm had acted with due care and skill in its professional capacity.

Judge Hartnett found that Rickards Legal had engaged in misleading and deceptive conduct by representing that certain conditions of a contract for the sale of property would be satisfied when they were not. The Court applied the principles of statutory interpretation to the relevant provisions of the *Trade Practices Act* and the *Property Law Act*, focusing on the objective meaning of the representations made and the likely effect on a reasonable consumer. The Court also considered the implied terms of a contract for legal services, including the duty to exercise reasonable care and skill. The Court concluded that the firm had breached its contractual obligations by failing to ensure the conditions were met and by not adequately advising Mr. Pekar of the risks involved.

The Court ordered that Rickards Legal pay damages to Mr. Pekar in an amount to be assessed.

Orders