Sloan v Arnold Thomas and Becker - [2019] VSC 292

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROFESSIONAL LIABILITY LIST

S CI 2017 05157

NEIL SLOAN	Plaintiff
v
ARNOLD THOMAS & BECKER PTY LTD (ACN 097 361 469)	First Defendant
LEE TEK FLANAGAN	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2019
DATE OF JUDGMENT:	8 May 2019
CASE MAY BE CITED AS:	Sloan v Arnold Thomas & Becker
MEDIUM NEUTRAL CITATION:	[2019] VSC 292 Revised 9 October 2019

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PRACTICE AND PROCEDURE – Section 62 of the Civil Procedure Act 2010 (Vic) – Application for summary judgment by solicitors against a former client on the basis that the proceeding has no real prospects of success – Whether the plaintiff’s causes of action against his solicitors are statute barred – Allegations of breach of contract and negligence time barred under the Limitation of Actions Act 1958 (Vic) (‘Act’) – Applicability of s 5(8) of the Act to an allegation of breach of fiduciary duty – Whether such equitable claim would be statute barred by way of analogy – Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582, referred to – Inappropriate to determine on a summary basis whether the claim is statute barred by analogy or whether a defence to a claim for breach of fiduciary duty based upon laches would be successful – Application for summary judgment dismissed – Statement of claim struck out in part.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendants	Ms B Myers	Wisewould Mahony

HER HONOUR:

The plaintiff, Mr Sloan, is self-represented. The defendants, Arnold Thomas & Becker and Mr Lee Flanagan (together ‘ATB’) are a firm of solicitors and the solicitor with the conduct of an earlier proceeding in which Mr Sloan was the plaintiff, NS v GD & Ors (‘2006 proceeding’). In the 2006 proceeding, Mr Sloan brought a claim against his former employers, and a senior employee of his former employers, with respect to losses allegedly suffered by him arising out of sexual assaults said to have been committed by the senior employee. Confidentiality orders have been made with respect to the 2006 proceeding, which will be respected in these reasons.

The 2006 proceeding was settled on 24 October 2011, when Mr Flanagan told the solicitors for the defendants in the 2006 proceeding that an offer made by them had been accepted. Shortly after this time, ATB ceased to act for Mr Sloan, after he purported to withdraw his authorisation to ATB to settle the 2006 proceedings on the terms upon which it was in fact settled. Those instructions were withdrawn in a letter from Mr Sloan to ATB dated 27 October 2011.

On 21 December 2011, Zammit AsJ (as she then was) made orders dismissing the proceeding by reason of the settlement agreement being valid and enforceable. An appeal against those orders was withdrawn after the judge hearing the appeal, Whelan J (as he then was), told Mr Sloan that if he…

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 Sloan v Arnold Thomas and Becker

Details

AGLC: Sloan v Arnold Thomas and Becker [2019] VSC 292
Case: [2019] VSC 292
Decision Date: 8 May 2019

CaseChat Overview and Summary

Arnold Thomas and Becker, the defendants, applied for summary judgment against their former client, Sloan, the plaintiff, in a dispute over the plaintiff's allegations of professional negligence and breach of contract. The matter was heard in the Supreme Court of Victoria. The defendants argued that the plaintiff's claims were statute-barred, relying on the Limitation of Actions Act 1958 (Vic), and that, by analogy, the equitable claim for breach of fiduciary duty was also time-barred. They sought to have the proceeding dismissed and the plaintiff's statement of claim struck out.

The court was required to determine whether the plaintiff's claims were statute-barred under the Act, and whether a claim for breach of fiduciary duty could be similarly time-barred by analogy. The court considered whether the defendants' application for summary judgment could be determined on the basis that the plaintiff's claims had no real prospects of success. It also considered whether the court should determine the applicability of s 5(8) of the Act to an allegation of breach of fiduciary duty and whether such a claim would be statute-barred by analogy.

The court found that the question of whether the claim for breach of fiduciary duty was statute-barred by analogy was complex and required consideration of factual and legal matters beyond the scope of a summary judgment application. It also noted that the defendants' application for summary judgment was inappropriate given the need for factual determinations, such as the applicability of s 5(8) of the Act and the potential defence of laches. The court dismissed the defendants' application for summary judgment and struck out part of the plaintiff's statement of claim.

The court ordered that the application for summary judgment was dismissed, and part of the plaintiff's statement of claim was struck out. The court did not determine the merits of the defendants' statute-bar argument or the applicability of s 5(8) of the Act to the claim for breach of fiduciary duty, as these issues required further factual investigation and could not be resolved on a summary judgment application.

Orders