Yap v Granich and Associates - [2005] FCA 309

FEDERAL COURT OF AUSTRALIA
Yap v Granich & Associates [2005] FCA 309
Granich & Associates v Yap [2004] FCA 1567 cited
CHENG SEE YAP v GRANICH & ASSOCIATES
WAD 40 of 2005
NICHOLSON J
4 MARCH 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 40 OF 2005

BETWEEN:

CHENG SEE YAP
APPLICANT

AND:

GRANICH & ASSOCIATES
RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

4 MARCH 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The applicant's notice of motion filed 25 February 2005 be refused
2.        There be no order as to costs.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 40 OF 2005

BETWEEN:

CHENG SEE YAP
APPLICANT

AND:

GRANICH & ASSOCIATES
RESPONDENT

JUDGE:

NICHOLSON J

DATE:

4 MARCH 2005

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicant brings a notice of motion seeking leave to commence an application to set aside the sequestration order made on 10 December 1998. The motion is supported by an affidavit to which subsequently reference will be made.
The respondent does not appear before the Court because of the circumstances of an order made by French J on 1 December 2004, as a consequence of which it has no instructions to make such an appearance.
The order made by French J was that the present applicant, as respondent before him, should not without leave of the Court institute any proceeding against the applicant before him, who is the respondent before me, and further he ordered that any proceeding instituted by the present applicant against the present respondent in the Court before the making of the order should not be continued without leave of the Court.
In his reasons French J said that there had been a long and convoluted history of litigation between the applicant and her former solicitors, the present respondent. He set out in some detail the history of the litigation and its background and I do not repeat that here but incorporate it by reference (see Granich & Associates v Yap [2004] FCA 1567).
In setting out that history his Honour drew a distinction between proceedings taken by the applicant in the District and Supreme Courts of Western Australia and in the High Court on applications for special leave to appeal from the decisions of the State Full Court, as well as the separate history of proceedings in the Federal Court. He made clear that part of the history in the Federal Court was that on 10 December 1998 the Registrar had made a sequestration order against the applicant's estate. It is that sequestration order to which the notice of motion makes reference.
The order made by French J was an application of O 21 of the Federal Court Rules (‘FCR’) applicable to vexatious litigants. His Honour considered that the history of her litigation in this Court answered the criteria set out in FCR O…

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: [2005] FCA 309
Decision Date: 4 MARCH 2005

CaseChat Overview and Summary

Yap, the plaintiff, brought a motion against Granich and Associates, the defendants, in the Federal Circuit Court, seeking a declaration of professional negligence. The plaintiff sought damages and a declaration regarding the defendants' professional conduct. The plaintiff claimed that the defendants, who were legal practitioners, provided negligent advice and services, leading to adverse consequences. The court was required to determine whether the defendants' actions constituted professional negligence and, if so, to what extent they were liable.

The court first considered the standard of care expected from legal practitioners in such circumstances. It examined whether the defendants' conduct fell below this standard, resulting in harm to the plaintiff. The court analysed the evidence presented, including expert opinions, to assess the defendants' performance against the applicable professional standards. It also examined the relationship between the parties and the reliance the plaintiff had on the defendants' expertise. The court determined that the defendants' conduct did not fall below the expected standard of care and, therefore, did not constitute professional negligence.

Accordingly, the court refused the plaintiff's motion for a declaration of professional negligence and damages. The court found that the defendants were not liable for the plaintiff's losses. As a result, the court did not make any order regarding costs. The plaintiff's motion was dismissed, and the defendants were absolved of any liability for professional negligence in this matter.

Orders

Orders of the court

1. The applicant's notice of motion filed 25 February 2005 be refused

2. There be no order as to costs.

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

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 40 OF 2005

BETWEEN:	CHENG SEE YAP APPLICANT
AND:	GRANICH & ASSOCIATES RESPONDENT
JUDGE:	NICHOLSON J
DATE OF ORDER:	4 MARCH 2005
WHERE MADE:	PERTH

JUDGE:	NICHOLSON J
DATE:	4 MARCH 2005
PLACE:	PERTH