Vukmirica v Betyounan - [2008] NSWCA 16

New South Wales

Court of Appeal

CITATION: VUKMIRICA v BETYOUNAN [2008] NSWCA 16

HEARING DATE(S): 12 February 2008

JUDGMENT DATE:
14 May 2008

JUDGMENT OF: Giles JA at 1; McColl JA at 92; Bell JA at 93

DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment in favour of the plaintiffs; (3) Remit the matter to the District Court for a new trial; (4) Costs of the trial to be in the discretion of the judge hearing the new trial; (5) Respondents pay appellant's costs of the appeal and have a certificate under the Suitors Fund Act.

CATCHWORDS: Negligence - solicitor - husband and wife borrowed money - acted on loan and mortgage - part of money "invested" and lost - whether investment without clients' authority - with authority of husband - whether with authority of wife - whether authority of wife to be implied - whether ostensible authority to be found - factual findings flawed - failure to make findings as to wife's involvement with husband's intentions - or with subsequent false account of transaction - findings in part based on observations of husband and wife in court not made known to solicitor - new trial ordered.

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Angaston and District Hospital v Thamm (1987) 47 SASR 177;
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 113 CLR 72;
Dare v Pulham (1982) 148 CLR 658;
Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50;
Farrer v Messrs Copley Singletons (Formerly Known as Messrs Gowan and Singleton) [1997] EWCA Civ 2127;
Government Insurance Office Of New South Wales v Bailey (1992) 27 NSWLR 304;
Kappis v State Transit Authority (1995) 11 NSWCCR 386;
Kassem v Crossley [2000] NSWCA 276;
Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666;
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35.

PARTIES: Marta Vukmurica (Appellant)
Dola Betyounan (1st Respondent)
Ramona Betyounan (2nd Respondent)

FILE NUMBER(S): CA 40869/06

COUNSEL: P Garling SC / G Gregg (Appellant)
I D Roberts SC (Respondents)

SOLICITORS: Thomson Playford (Appellant)
Peter A Collins & Associates (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1826/05

LOWER COURT JUDICIAL OFFICER: Gerahty DCJ

LOWER COURT DATE OF DECISION: 14 December 2006

CA 40869/06
DC 1826/05

GILES JA
McCOLL JA
BELL JA
Wednesday 14 May 2008

VUKMIRICA v BETYOUNAN & ANOR

Judgment

1 GILES JA: The respondents, Mr Dola Betyounan and Mrs Ramona Betyounan, borrowed $150,000 from a financier on mortgage security. The appellant, Ms Marta Vukmirica, was retained as their solicitor for the loan and mortgage transaction.

2 As found by Geraghty DCJ, Mr Betyounan instructed the appellant that $90,000 of the loan should be provided by a bank cheque drawn in favour of Karl Suleman & Co. The appellant acted accordingly, and the cheque was given to Mr Betyounan. Mr Betyounan…

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: [2008] NSWCA 16
Decision Date: 14 May 2008

CaseChat Overview and Summary

The appeal in *Vukmirica v Betyounan* concerned a claim by a husband and wife against their solicitor. The couple had borrowed money, and the solicitor acted on the loan and mortgage documentation. A portion of the borrowed funds was purportedly "invested" and subsequently lost. The central dispute revolved around whether the solicitor had the necessary authority from both the wife and the husband to proceed with this investment, particularly given the wife's subsequent denial of authorising the investment and her husband's differing account of the transaction. The matter came before the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several key legal issues. These included whether the solicitor acted without the clients' authority in investing the funds, whether the wife had granted actual or implied authority to her husband to authorise the investment on her behalf, and whether the solicitor possessed ostensible authority to proceed with the investment. The court also considered whether the factual findings made by the trial judge were flawed, particularly concerning the wife's involvement with her husband's intentions and his subsequent account of the transaction.

Giles JA, with whom McColl JA and Bell JA agreed, found that the factual findings of the trial judge were flawed. The judge had relied, in part, on observations of the husband and wife in court that were not communicated to the solicitor, thereby potentially undermining the basis for the findings regarding the wife's authority. The court concluded that the trial judge had failed to make necessary findings as to the wife's involvement with her husband's intentions or his subsequent false account of the transaction. Consequently, the Court of Appeal allowed the appeal, set aside the verdict and judgment in favour of the plaintiffs, and remitted the matter to the District Court for a new trial. The costs of the new trial were left to the discretion of the trial judge, while the respondents were ordered to pay the appellant's costs of the appeal and were granted a certificate under the Suitors Fund Act.

Orders

Orders of the court

(1) Appeal allowed; (2) Set aside the verdict and judgment in favour of the plaintiffs; (3) Remit the matter to the District Court for a new trial; (4) Costs of the trial to be in the discretion of the judge hearing the new trial; (5) Respondents pay appellant's costs of the appeal and have a certificate under the Suitors Fund Act. (per Giles JA with McColl and Bell JJA)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	VUKMIRICA v BETYOUNAN [2008] NSWCA 16
HEARING DATE(S):	12 February 2008
JUDGMENT DATE:	14 May 2008
JUDGMENT OF:	Giles JA at 1; McColl JA at 92; Bell JA at 93
DECISION:	(1) Appeal allowed; (2) Set aside the verdict and judgment in favour of the plaintiffs; (3) Remit the matter to the District Court for a new trial; (4) Costs of the trial to be in the discretion of the judge hearing the new trial; (5) Respondents pay appellant's costs of the appeal and have a certificate under the Suitors Fund Act.
CATCHWORDS:	Negligence - solicitor - husband and wife borrowed money - acted on loan and mortgage - part of money "invested" and lost - whether investment without clients' authority - with authority of husband - whether with authority of wife - whether authority of wife to be implied - whether ostensible authority to be found - factual findings flawed - failure to make findings as to wife's involvement with husband's intentions - or with subsequent false account of transaction - findings in part based on observations of husband and wife in court not made known to solicitor - new trial ordered.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Angaston and District Hospital v Thamm (1987) 47 SASR 177; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 113 CLR 72; Dare v Pulham (1982) 148 CLR 658; Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50; Farrer v Messrs Copley Singletons (Formerly Known as Messrs Gowan and Singleton) [1997] EWCA Civ 2127; Government Insurance Office Of New South Wales v Bailey (1992) 27 NSWLR 304; Kappis v State Transit Authority (1995) 11 NSWCCR 386; Kassem v Crossley [2000] NSWCA 276; Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35.
PARTIES:	Marta Vukmurica (Appellant) Dola Betyounan (1st Respondent) Ramona Betyounan (2nd Respondent)
FILE NUMBER(S):	CA 40869/06
COUNSEL:	P Garling SC / G Gregg (Appellant) I D Roberts SC (Respondents)
SOLICITORS:	Thomson Playford (Appellant) Peter A Collins & Associates (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1826/05
LOWER COURT JUDICIAL OFFICER:	Gerahty DCJ
LOWER COURT DATE OF DECISION:	14 December 2006