JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATES OF HEARING:	25-27, 30, 31 March, 1 April 2009.
DATE OF JUDGMENT:	9 April 2009
CASE MAY BE CITED AS:	Spiteri v Roccisano
MEDIUM NEUTRAL CITATION:	[2009] VSC 132

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LEGAL PRACTITONERS – Solicitor – Breach of retainer – Negligence – Ambit of retainer – Failure to advise on adequacy of security for proposed loan – Causation – Damages – Effect of tax benefit to plaintiff – Whether contributory negligence – Apportionment and limitation of liability under Part IVAA, Wrongs Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Palmer	Lewenberg & Lewenberg
For the Defendant	Mr N Pane	Minter Ellison

HIS HONOUR:

In late July 2003, the plaintiff, Roger Spiteri, agreed to lend to Maribyrnong Road Developments Pty Ltd the sum of $350,000 in respect of a development then being planned by that company at 41 Maribyrnong Road, Ascot Vale. The development was known as “The Mansion”. Pursuant to that agreement, Mr Spiteri advanced $350,000, in two instalments, to Maribyrnong Road Developments, in September 2003. Subsequently, the development failed. The plaintiff has not recovered any of the funds advanced by him to the project. Before he entered into the loan agreement, he had retained the defendant, Vince Roccisano, to act on his behalf as his solicitor in respect of the loan agreement. In this proceeding, the plaintiff claims damages from the defendant, alleging breach of retainer and negligence by the defendant in acting on his behalf in respect of the loan to Maribyrnong Road Developments. The defendant has joined, as third parties to the action, Maribyrnong Road Developments and its two directors, Peter Agushi (“Agushi”) and Dominic Calabro (“Calabro”).

Background

Since 1994, the plaintiff has conducted business as a nurseryman. In 2002, he met Agushi when he was delivering a plant to a building site in Jolimont. The plaintiff and Agushi had attended the same school in the 1970s. Agushi told the plaintiff that he and Calabro were project developers involved in building residential apartments. Subsequently, the plaintiff delivered plants to another project in which Calabro and Agushi were involved. The plaintiff and Agushi became reacquainted, and he and his wife met Agushi and his wife on a number of occasions socially. During those meetings, Agushi discussed with the plaintiff the developments which Agushi and Calabro were then undertaking.

In July 2003, Agushi requested the plaintiff to attend a meeting at his offices in Chetwynd Street, North Melbourne. When the plaintiff attended there, Agushi and Calabro made him a proposal that he invest the sum of $350,000 in the Maribyrnong Road project. Subsequent to that meeting, on 25 July 2003 the plaintiff contacted the defendant, and engaged him to act on his behalf in respect of the proposed investment. The defendant had previously acted as the plaintiff’s solicitor for approximately 20 years. 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 Spiteri v Roccisano

Details

AGLC: Spiteri v Roccisano [2009] VSC 132
Case: [2009] VSC 132
Decision Date: 9 April 2009

CaseChat Overview and Summary

In the matter of Spiteri v Roccisano, the plaintiff, Spiteri, sued Roccisano, his former solicitor, for professional negligence. The dispute centred around Roccisano's handling of a legal matter involving the plaintiff's financial transactions and advice on securing a loan. The case was heard in the Supreme Court of Victoria.

The court needed to determine several legal issues, including whether Roccisano's advice fell outside the scope of his retainer, if Roccisano's failure to advise on the adequacy of security for a proposed loan constituted negligence, and if so, whether the plaintiff's damages were directly caused by this negligence. Additionally, the court considered the impact of a tax benefit received by the plaintiff, which reduced the amount of damages payable to him. The court also evaluated whether the plaintiff was contributory negligent and the implications of this on the apportionment of damages under Part IVAA of the Wrongs Act 1958 (Vic).

The Supreme Court found that Roccisano had indeed breached his retainer by failing to advise on the adequacy of security for the proposed loan. The court held that this failure constituted negligence and directly caused the plaintiff's loss. However, the court took into account the tax benefit the plaintiff received, which reduced the overall damages owed to him. The court also found that the plaintiff was not contributory negligent, and thus there was no need for apportionment of liability under Part IVAA. The court ordered Roccisano to pay damages to the plaintiff, adjusted for the tax benefit.

Orders