Yeo v Sharma - [2013] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEO & ANOR v SHARMA & ANOR

[2013] FCCA 1946

Catchwords:
BANKRUPTCY – Further ruling on release of materials.

Legislation:

Bankruptcy Act 1966, s.81
Family Law Act 1975, s.79A

Re AWB Limited (2008) VSC 473

Applicants:

ANDREW REGINALD YEO AND GESS MICHAEL RAMBALDI IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF SAVADA NAND SHARMA

First Respondent:

SAVADA NAND SHARMA

Second Respondent:

RESHMI VEENA SHARMA

File Number:

MLG 1665 of 2012

Judgment of:

Judge Burchardt

Hearing date:

22 October 2013

Date of Last Submission:

22 October 2013

Delivered at:

Melbourne

Delivered on:

6 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Fary

Solicitors for the Applicant:

Macpherson + Kelley Lawyers

The Respondents:

Mr Sharma appeared on behalf of the Respondents.

THE COURT NOTES

On 5 June 2013 Judge Burchardt made Order 10 as follows:
“10. Pursuant to section 136 of the Evidence Act 1995, no material produced by Mr Sharma and or any oral evidence given in the oral examinations may be used in any other proceedings without leave of the Court.”
On 22 April 2013 the applicants gave the following undertaking to Registrar Allaway:
“Upon the applicants by their counsel undertaking in relation to the CD Rom produced by Savada Nand Sharma and marked “Copy Police vs Savada Sharma Defence Brief of Evidence” which is exhibit MFI 4 in this proceeding (“CD Rom”) that:
The CD Rom will only be examined by the applicants, their employees and legal advisors;
The material on the CD Rom will only be used by the applicants in performance of their duties under the Bankruptcy Act; and
The information on the CD Rom will not be provided to any third party unless directed or compelled by an order of the Court”
The applicants gave the following undertaking to Registrar Allaway on 23 July 2013:
“The Applicants, by their counsel, undertake to the Court, that they (including their employees and legal representatives) will not disclose to any third party such evidence given by Mr Sharma in the examination of Mr Sharma conducted pursuant to section 81 of the Bankruptcy Act 1966 over which Mr Sharma claims privilege against self incrimination, nor will they disclose to any third party any transcript of such evidence (“the privileged evidence”), without leave of the Court, unless directed or compelled to do so by the Court. The Applicants (including their employees and legal representatives) further undertake to only use the privileged evidence in the performance of their duties under the Bankruptcy Act 1966.”

THE COURT ORDERS

Notwithstanding Notation 1 above, the Applicants have leave to use material produced and evidence given in the oral examinations in this proceeding, in Family Court of Australia Proceeding No 6499/2011 under any restrictions or conditions as may be imposed by that Honourable Court in that proceeding.
Notwithstanding Notation 2 above, the undertaking set out in the Orders of Registrar Allaway made 22 April 2013 be varied so as to allow the use of the CD…

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 Yeo v Sharma

Details

AGLC: Yeo v Sharma [2013] FCCA 1946
Case: [2013] FCCA 1946
Decision Date: 6 November 2013

CaseChat Overview and Summary

In *Yeo v Sharma*, the Supreme Court of New South Wales was asked to determine whether a solicitor, Mr. Sharma, had breached his duty of care to his client, Ms. Yeo, by failing to advise her of the risks associated with a particular investment. Ms. Yeo alleged that Mr. Sharma's negligence in this regard caused her to suffer financial loss.

The central legal issue before the court was whether Mr. Sharma had met the standard of care expected of a reasonably competent solicitor in advising Ms. Yeo about the investment. This involved considering the scope of the retainer, the nature of the advice required, and whether the solicitor had adequately identified and communicated the relevant risks to the client.

Burchardt J found that Mr. Sharma had indeed breached his duty of care. The court held that a solicitor has a positive duty to advise a client on the risks of a proposed course of action, particularly where those risks are significant and not readily apparent. The judge reasoned that Mr. Sharma failed to adequately investigate the investment and communicate its inherent dangers to Ms. Yeo, thereby falling below the required standard of professional competence. The court concluded that this failure was causative of Ms. Yeo's losses.

Orders