Kordatos v Eliadis & Associates
[2006] QDC 394
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- Unreported Judgment
- Kordatos v Eliadis & Associates[2006] QDC 394
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Kordatos v Eliadis & Associates[2006] QDC 394
Kordatos v Eliadis & Associates[2006] QDC 394
![Kordatos v Eliadis & Associates [2006] QDC 394](/judgmentview/image?name=316581.001.png&id=316581)
DISTRICT COURT OF QUEENSLAND
CITATION: | Kordatos v Eliadis & Associates [2006] QDC 394 |
PARTIES: | STEVE KORDATOS Plaintiff v ELIADIS & ASSOCIATES (A FIRM) Defendant |
FILE NO: | D3036/05 |
PROCEEDING: | Application to Strike Out Statement of Claim and Dismiss Action |
DELIVERED ON: | 27 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 October 2006 |
JUDGE: | Judge Brabazon QC |
ORDER: | Statement of Claim struck out and proceedings dismissed |
CATCHWORDS: | PRACTICE AND PROCEDURE - CLAIM - SELF-REPRESENTED – Whether the statement of claim should be struck out. Whether summary judgment should be given. D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92 Kordatos v Sweeney (2003) FMCA 461 |
COUNSEL: | Mr Kordatos in person Mr Jackson of counsel for the defendant |
SOLICITORS: | Phillips Fox for the defendant |
The Issues
- [1]Mr Kordatos, acting on his own behalf, has brought a claim against his former solicitors, Eliadis & Associates. He claims “special damages $143,867, interest $99,481 for loss of income, breach of contract and negligence and $50,000 general damages for anxiety, disappointment, inconvenience, frustration, discomfort, stress and strain”.
- [2]He has had some difficulty in drafting an appropriate statement of claim. The fourth amended version of the statement of claim now has to be considered. Should it be struck out?
- [3]It is also submitted by Eliadis & Associates that, as there is no prospect of success in any of these proceedings, summary judgment should be given, and Mr Kordatos’ claims brought to an end.
- [4]It is necessary to consider both the history of the matter, and the present version of the statement of claim.
- [5]Some unusual features of this litigation should be kept in mind. First, this is not only a proceeding against a former solicitor. The allegation is not just that Eliadis & Associates were at fault. It is that they were at fault in not pursuing his original solicitor, Mr Anthony Gray and others, whose faults give rise to his losses. Secondly, the facts here show that Eliadis & Associates were retained by him from about 23 January 2004 to about 18 March 2004, some eight weeks. He was advised to settle a District Court action. No other action was taken on his behalf. Indeed, he was advised that he had no grounds to take any other action. Bearing in mind that his difficulties started in 1992, and that he had, in the meantime, obtained advice from at least three other firms of solicitors, his claims against this defendant should be looked at closely. If the firm were at fault, what loss would he have suffered?
- [6]It must be kept in mind, that the strength of any claim against Mr Gray or other solicitors, or his trustee in bankruptcy is not the only issue. The real issue is the alleged failure of Eliadis & Associates to carry out its retainer on his behalf. Even if the others were at fault, it does not necessarily follow that his most recent solicitors are also at fault.
Eliadis & Associates
- [7]Mr Kordatos first saw Mr Eliadis in January 2004. A client agreement was prepared and signed on 29 January 2004. It sets out the extent of a retainer by Mr Kordatos:
“All work related to the investigation of your prospective claim against Mr Paul Lynch and/or Mr Anthony Gray, for negligence and/or breach of contract, briefing of a barrister to advise on prospects of success and if warranted the preparation by the barrister or this firm of statement of claim for District Court proceedings No. D4571/2003 and all matters necessary to the conduct of that litigation…”
- [8]On 5 February 2004, Mr Kordatos sent a fax to Mr Eliadis, referring to the recent conversation between them. As Mr Kordatos put it:
“…I have prepared and submit for your consideration a brief summary of all the matters which are to be reviewed in order for an opinion to be given by a barrister, most likely your brother Michael, in a possible legal action against Mr AD Gray and Mr Paul Lynch and anyone else you may consider liable during your investigation.”
- [9]The summary included details of several matters that Mr Kordatos was concerned about. Put briefly, they were these:
- (a)In 1991 he completed a translation of a book from Greek into English. There was then a dispute about fees with the authors. Mr Batounas was one of them. Litigation followed. Mr Gray was his solicitor. The case was lost. Mr Kordatos blamed that on Mr Gray’s failure to call an expert witness (Mr Oreopoulos) and on the “most preposterous evidence one can imagine” given for the other side by Mr Arthur Comino, a solicitor. He incurred losses and costs amounting to about $37,000.
- (b)He was retained by a Mr Drougkas to provide translation/interpretive services. He did not pay. Mr Gray acted for Mr Kordatos, and took the matter to court. The claim was successful, but, it seems the judgment debt was never paid. He blames Mr Gray for that. His losses were some $5,500.
- (c)He says that he was defamed, because of a wrongful allegation about stealing some tools. Mr Gray acted for him in a claim for damages in the District Court. The judge awarded him $1,500. However, an appeal was lodged and the Court of Appeal set aside that judgment. He then says that his dealings with Mr Gray led to him being made bankrupt.
- (d)He then met another solicitor, Mr Paul Lynch. The fax does not say what Mr Lynch was retained to do. Meeting him was “a misfortune” and he suffered losses of about $3,000.
- [10]Mr Eliadis sent a brief to Mr Peter Hackett of counsel. He was asked to advise. It is dated 19 February 2004. The brief included seven pages of instructions. It is helpful to set out some excerpts of the instructions:
“Counsel is briefed to advise as regards prospects of success for Mr Kordatos in potential claims against his former solicitors, Paul Lynch and Anthony Gray (or perhaps Ebsworth and Ebsworth, Hall Payne or David Laws (Barrister)). There is a complicated history to this matter stretching back over the last fifteen years and a large volume of documents relating to the matter. As it would happen, Mr Kordatos has been active against a number of previous solicitors and has collected a considerably large volume of paperwork relating to the various alleged claims…
The Current Proceedings
This matter is currently before the District Court in Brisbane. Paul Lynch, solicitor, is the defendant. Mr Kordatos prepared his own originating application and supporting affidavit which were technically deficient… It is necessary to prepare a statement of claim if in fact a ground for an action exists…
Translation Matter – Batounas
This matter was determined in the Magistrates Court in 1992 and related to a claim for recovery of translation fees… Mr Anthony Gray was his solicitor… Although proceedings were started against Mr Comino and an appearance entered, no more steps were taken in the Supreme Court… If you feel that the case requires further investigation please advise of that.
Translation for Mr Drougkas
…the concern is that a considerably high amount of legal fees were obviously expended pursuing a debt of approximately $3000… The bills from Grays Lawyers were as follows:
$21,195.00
$ 8,990.00
…it is difficult to determine whether both bills were paid. …it is difficult from the records in our possession to actually determine exactly what money has been paid to Mr Gray… As regards the actual debt owing by Drougkas, we note that the trustee in bankruptcy advise that all that shows is an action invested in the trustee in bankruptcy. We do not know whether any adequate steps were taken to recover these monies by the trustee…
Defamation Matter
Mr Kordatos brought proceedings in the District Court for defamation against Mr Michael Batounas, the same person referred to in the first translation matter… Mr Batounas appealed the decision and was successful in the Court of Appeal, having judgment put aside and an order for costs. Mr Kordatos then sought to have the matter appealed by the High Court but leave was not granted. The application for special leave to appeal was heard by the High Court on 22 June 1995. That was unsuccessful. At all times Mr Gray was again acting as solicitor for Mr Kordatos.
…Mr Kordatos was bankrupted on 15 July 1996.
The Mortgage and the Bankruptcy
Prior to the bankruptcy proceedings Mr Gray, as solicitor for Mr Kordatos, suggested that he would be able to thwart recovery by allowing a mortgage to be registered over the property at Chapel Hill (occupied by himself and his partner). A mortgage for the sum of $100,000 was registered on 22 November 1995. Upon the bankruptcy, the trustee for the estate of Mr Kordatos negotiated with Mr Gray and the mortgage was removed upon payment to Mr Gray in the sum of $15,000 in legal fees… Mr Kordatos claims that it was not made clear to him that it would be simply cheaper to pay out the judgment debt (which he was in a position to do with refinancing) and as a result has suffered further economic loss…
Ebsworth and Ebsworth, Solicitors
Steve Kordatos subsequently attended the offices of Ebsworth and Ebsworth some time in 1996. They did issue a writ of summons against Mr Gray, however, no further action was taken on that writ of summons. It appears that proceedings were issued in November 1996 against Mr Gray… It appears that Mr Gray’s retainer would have been terminated some time after the bankruptcy (July 1996). It appears that no further action was taken and Mr Kordatos took his file to Hall Payne, Lawyers.
Hall Payne, Lawyers
We are uncertain when Mr Kordatos first attended Hall Payne Lawyers but upon reviewing his file he terminated his retainer on or about 6 July 2000.
David Laws
Kordatos somehow briefly approached a barrister, David Laws, to review his matter, however, Mr Laws refused to accept the retainer and refused to act… He approached Mr Laws in February 2001 and by May 2001 Mr Laws had confirmed refusal of the retainer.
Paul Gerard Lynch, Solicitor
Some time in June or July 2001 Mr Kordatos went to Mr Paul Lynch to seek legal advice. It appears that Mr Lynch after some delay ultimately provided advice which is enclosed for your information…
Mr Kordatos proceeded to institute proceedings in the District Court on 24 December 2003. These are now the ones currently before the court. We expect Mr Lynch’s liability will be for lost opportunity to sue previous solicitors…
Counsel is requested to address any rights of action that may be held by Mr Kordatos against Mr Gray or alternatively Mr Lynch, or any other person, in either contract or negligence. Where counsel holds the view that a matter is statute barred, counsel should specifically address this point and specific dates.”
- [11]A selection of documents was enclosed with the advice. Mr Hackett provided a written opinion of about sixteen pages. He dealt with a number of matters. It is necessary to see what he said about them. When solicitors obtain council’s opinion and act on it, that is not automatically a good defence to a claim of negligence. However, in many cases, it will be a good defence.
Counsel’s Advice
- [12]This is an edited version of counsel’s advice:
“Proceedings Against Batounas
- (17)It is arguable that Mr Kordatos may have had available to him at some time between 1992 and July 1995 a right to apply to have the decision in the Batounas matter set aside based on fraud.
- (18)However, I am unable to express a view on the prospects of that application as I do not know the basis upon which it was asserted in 1995 that the evidence given by Mr Comino was false and/or misleading.
- (19)I am of the view that that right has probably been lost with the passage of time and that the failure to advance the proceedings commenced directly against Mr Comino.
- (21)It is difficult to express a view when the cause of action against Mr Gray expired in respect of negligence and/or breach of contract… Accordingly, the latest date for the expiry of that cause of action against Mr Gray was 10 July 2001.
Defamation Proceedings Against Mr Batounas
- (29)Mr Kordatos complains that the initial trial was conducted in such a way that evidence of the issue of bad faith was not established to a sufficient degree to ultimately satisfy the requirements of the Court of Appeal… I am not instructed as to whether there was any further evidence available to Mr Kordatos in this regard. Even if I assume that there was, and Mr Gray and counsel that appeared at the trial failed (over instructions) to call the same, any action for negligence and/or breach of contract against Mr Gray in this regard would have expired at the latest six years after the initial trial.
Summary
- (31)There is no evidence available to me to conclude that Mr Gray or counsel were negligent in the way the defamation proceedings against Mr Batounas were conducted.
- (32)Even if they were negligent, any course of action based upon negligence for the way in which the trial was conducted expired six years after the trial at the very latest.
- (33)Accordingly the six-year period expired at the latest on 16 June 1999.
- (39)I am unable to conclude that there is any potential claim of negligence against either Mr Gray or the trustee in bankruptcy.
- (40)It may be the case that the opportunity to enforce a judgment against Mr Drougkas has been lost because of subsequent dealing with his property as a consequence of orders made by the Family Court. If that were the case the facts associated with it occurred in 1992 or at the latest 1993. Therefore the limitation period of any claim expired in 1999 at the latest.
Mortgage
- (42)On 2 March 1995 Mr Gray obtained a mortgage from Mr Kordatos and his partner (Mary Jean Cole) to secure unpaid legal fees…
- (45)I am instructed that Mr Kordatos claimed that he was not made aware by Mr Gray that it would have been simply cheaper for him to pay out the judgment debt so as to avoid bankruptcy and not enter into the mortgage at all.
Summary
- (51)I am not able to form a view on the information available to me that the advice given by Mr Gray as a matter of course did not include the option of paying the judgment debt to avoid bankruptcy as the advice he did give seems to have been premised upon instructions that bankruptcy was inevitable.
- (52)The advice given by Mr Gray in this regard must have preceded the entry into the mortgage on 2 March 1995. As a consequence any course of action for negligence and/or breach of contract as a consequence of that advice expired at the latest, six years after the entering of the mortgage being 2 March 2001.
- (53)There is no basis for a complaint against the trustee in bankruptcy in respect of the timing of the application to sever the joint tenancy and seek a sale of the property jointly owned with Mrs Cole.
Ebsworth and Ebsworth
From the information contained in my brief, it is apparent that Mr Kordatos retained Ebsworth and Ebsworth to advise on potential courses of action for professional negligence against Mr Gray…
- (55)The letter from Ebsworth and Ebsworth dated 24 March 1997 is a very detailed and considered advice on the prospects of a claim for negligence against Mr Gray. The letter deals with each of the complaints then made by Mr Kordatos.
- (56)I have no basis to contradict the facts which they rely upon for their opinion. I have considered their advice and consider it to be appropriate in the circumstances. The advice forms the view that Mr Kordatos did not have available to him a maintainable claim for professional negligence for breach of contract against Mr Gray. I agree with that advice.
Summary
- (60)On the information available to me I can see no claim available to Mr Kordatos against Ebsworth and Ebsworth for negligence and/or breach of contract.
Hall Payne Lawyers
- (65)The letter from Hall Payne dated 15 June 2000 advises Mr Kordatos of the combined opinion of Mr Hall and Mr Goodwin of counsel as follows:
- (a)The prospects of extending the period of limitation of these proceedings against Mr Gray for negligence were limited and in their opinion unlikely to proceed.
- (b)…
- [13]I see no negligence and/or breach of contract on the part of Hall Payne or Mr Goodwin of counsel.
Summary
- [14]Hall Payne and Mr Goodwin were asked to advise on prospects of professional negligence claims against Mr Gray. They formed a view to the contrary and I can see nothing untoward with their advice. It is consistent with earlier advice provided to Mr Kordatos by Ebsworth and Ebsworth.
- (70)There is no available claim for negligence and/or breach of contract against Hall Payne or Mr Goodwin.
David Laws - Summary
- (75)I am unable to conclude there is any claim against Mr Laws for negligence or breach of contract.
Paul Gerard Lynch
- (76)The information in respect of the retainer of Mr Lynch is available to me from the affidavit sworn by Mr Kordatos dated 23 December 2003 in the current proceedings which are ongoing.
- (77)It seems apparent from that information that Mr Kordatos retained Lynch and Company by two letters dated 19 and 26 November 2001.
…Mr Lynch wrote a Litigation Report which details his advice on 22 October 2002. It is apparent from the Litigation Report that Mr Lynch was retained in respect of the bill of mortgage in favour of Mr Gray and the transaction which led to the entering into the same. Having considered that advice, I agree with that advice.
- (78)…There is no breach of duty on the part of Mr Lynch actionable by Mr Kordatos for the reasons outlined above, namely, I have formed a view that there are no maintainable claims at any stage against Mr Gray.
Summary
- (79)I am unable to conclude that there is any claim against Mr Lynch for negligence or breach of contract. Accordingly I am unable to draw a statement of claim.”
- [15]Mr Hackett’s opinion was sent to Mr Kordatos on 12 March 2004. The fax said:
“As you can see, Mr Hackett’s opinion is that you have no prospects of recovery against any of the parties involved and it would only add to your legal expenses to continue proceedings which you are ultimately likely to be unsuccessful in… In the light of the barrister’s advice…we cannot advise that you continue proceedings. We believe that the best course of action now open to you is to cease your current proceedings in the Supreme Court by way of Notice of Discontinuance…” (In fact, they were District Court proceedings.)
- [16]In a fax of 15 March 2004 Mr Kordatos expressed his surprise about the effect of the opinion. His solicitors responded in a fax of 15 March 2004. A conference was suggested.
- [17]At a meeting on 16 March 2004, Mr Kordatos gave instructions to settle the Lynch litigation on the basis of each side paying its own costs. Mr Kordatos was told that Mr Hackett had been briefed to do a statement of claim, but he could not do one in good conscience because he thought that the case was hopeless. Overall Mr Hackett’s opinion was that “he didn’t have a chance”. The firm’s opinion was that “we don’t think you are going to get too far”. Mr Kordatos was upset with the legal system.
- [18]On 17 March 2004 Mr Kordatos signed an authority, authorising settlement of the Lynch litigation on the basis that each party walk away and bear its own costs. Settlement was reached on that basis, and the action was discontinued. On that day Eliadis & Associates wrote to him, saying that “at that time we will consider our retainer terminated … we request that you collect the seven books of documents that are currently held at our office.” His written offer to the solicitors for Paul Lynch, dated 17 March 2004, says “I hereby terminate my retainer with Eliadis & Associates, Solicitors”.
- [19]Time passed. Then, on 15 August 2005, Mr Kordatos filed and served this Claim and a Statement of Claim against Eliadis & Associates. A Defence was filed on 12 September 2005.
- [20]Eliadis & Associates have always maintained that the Statement of Claim is defective, discloses no reasonable cause of action against it, and is ambiguous, obscure and frivolous.
- [21]It is now necessary to turn to the current version of that pleading, in the light of the available facts.
The Statement of Claim
- [22]On 14 June 2006 Judge Ryrie considered the third amended Statement of Claim. She ordered that it be struck out. Mr Kordatos was given leave to re-plea within six weeks.
- [23]Paragraph 5 of the Statement of Claim does not accurately set out the agreed terms of the written retainer. The omitted words are important – the briefing of a barrister is to “advise on prospects and if warranted the preparation by the barrister or their firm of a Statement of Claim”.
- [24]The allegation is that the firm failed to commence legal proceedings against the previous solicitors, Gray, Burns, Hall and Payne, Laws and Lynch, and also against the trustee in bankruptcy, Sweeney. It is also alleged that the defendants were in breach of their fiduciary duty by not advising Mr Kordatos to obtain independent advice. It is said that they also placed themselves in the position of conflict of interest and compromised their independence by accepting a retainer from him in circumstances where they should not have done so. (Paras 10 and 11.)
The Translation Claim
- [25]The statement of claim says that Mr Gray failed to call witnesses the plaintiff instructed him to call, or to use all the material available to advance the plaintiff’s case. However, it has long been the law in this country, that an advocate, either a barrister or a solicitor, cannot be sued by a client for negligence in the conduct of the case in court. That principle was recently reaffirmed by the High Court of Australia in D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92.
- [26]In paragraph 2, it is alleged that Mr Gray failed to lodged an appeal within a time limit, losing the right of appeal. However, no facts are pleaded which would show that an appeal would have been successful. There is nothing to show that Mr Gray’s conduct was the cause of any particular loss.
- [27]Paragraph 3 and 7 allege that Mr Comino was a witness, and that he was fraudulent or committed perjury. Paragraph 4 says that Mr Gray issued a writ against Mr Comino in August 1995, but that he failed to follow it up.
- [28]At common law, there is no right of action against any witness. A witness in court enjoys a privilege against collateral attacks by a disappointed litigant. It is true that a witness may not break the criminal law, and may be prosecuted for perjury. It is also true that fraudulent evidence by a witness might lead to the court’s decision being set aside, and a new trial ordered. In that case, the proceedings would be against the other litigant, and not against the witness personally.
- [29]Mr Comino is accused of fraud and perjury, but there are no facts pleaded which might lead to that conclusion.
- [30]It is asserted that Mr Gray insisted that Mr Kordatos should pay the other side’s costs which were $9401. The plaintiff said that he had no option but to pay, as Mr Gray had failed to lodge an appeal in the time limit. That may be so. However, there are no facts pleaded to support the implied assertion, that an appeal would have been successful, if lodged.
- [31]It also alleged that Mr Gray failed to attend a hearing about the taxation of costs. However, no facts are alleged which would indicate that his attendance would have made a difference. There is nothing pleaded to suggest that Mr Kordatos suffered any loss because of that failure.
- [32]It is true, as alleged, that there are no time limitations with respect to the prosecution of criminal offences. However, civil proceedings are concerned not with the commission of criminal offences, but whether or not they amount to civil wrongs which are compensable. For Mr Kordatos to recover damages, there would have to be such a wrong. The ordinary time limitation is six years. It appears from Mr Hackett’s opinion that the matter was determined in the Magistrates Court in 1992. By 2004, it is impossible to think that a claim against Mr Gray would not be met with a defence based on the limitation period.
- [33]For those reasons, it is not possible to see from the Statement of Claim how Eliadis & Associates could have recovered anything against Mr Gray.
The Defamation Matter
- [34]This claim is based on the defamation proceedings. Litigation against Mr Batounas was lost in the Court of Appeal. Mr Kordatos asserts that the other side was successful “largely as the result of the inferior quality of the material presented as evidence by Mr Gray and failure on the part of Mr Gray to call witnesses already subpoenaed to give evidence.” Again, no claim arises out of Mr Gray’s role as an advocate in court proceedings.
- [35]There is an allegation that Mr Gray failed to attend a hearing about the taxation of costs. However, there are no facts pleaded to suggest that this had any adverse consequences for Mr Kordatos.
- [36]It is said that Mr Gray committed fraud, in that he billed Mr Kordatos for the cost of a conference, when he was outside Australia at the time.
- [37]The defamation matter allegations then are linked to Mr Kordatos’ bankruptcy. Mr Batounas petitioned to have Mr Kordatos made bankrupt. Mr Kordatos says that he was prepared to pay costs to Mr Batounas, but that Mr Gray instructed him not to do so.
The Statement of Claim says that Mr Kordatos resisted the petition before Spender
in the Federal Court (Kordatos v Sweeney (2003) FMCA 461). His reasons show how the dispute developed. Mr Kordatos appeared in person to oppose the petition. The judge had the advantage of reading an affidavit sworn by Mr Gray. He said this:
“This is a creditor’s petition which arises out of most unfortunate circumstances. The fact of the matter is that these proceedings are simply the culmination of a long history of dispute between the petitioning creditor, Mr Batounas and Mr Kordatos. … What essentially is a very small matter has resulted in litigation of an extensive kind which has lead to the making of costs orders for significant amounts. Apparently Mr Kordatos had done work for Mr Batounas in relation to the translation of a Greek text. Subsequently, a defamation action took place, as a result of which Mr Kordatos was successful. An appeal to the Court of Appeal however was successful and the order of the Court of Appeal was that the appeal be allowed and that the judgment be set aside, the action below be dismissed with costs to be taxed and paid by Mr Kordatos. … The taxed costs were allowed in the sum of $12,515.67.
It is that claim which founds the bankruptcy notice and on which the petition is brought. … Mr Kordatos sought special leave to appeal from the High Court of Australia, but special leave was refused. … Mr Gray in particular said that Mr Kordatos is “rightly” dissatisfied with the decisions which have been made in the Court of Appeal. … It is a matter of great regret that this dispute, which at one stage turns around the question of position of tools and the making of claims in respect of tools which had a value of about $70.00, should lead to this terrible situation developing. The material before me shows that Mr Kordatos is very highly regarded, particularly in his work as a translator and interpreter. … The material filed by Mr Kordatos and on his behalf is testimony to the regard and value of his services to the community. However, I am constrained by the laws that relate to the Bankruptcy Act 1966 to proceed according to law. It is a matter as I say of sadness that this deep dispute between the petitioning creditor and the debtor should have had the expensive consequences that it has had. I am however constrained by the law. … I make a sequestration order against the estate of Mr Kordatos and order that the costs of and incidental to the petition, including any reserved costs, be taxed and paid in accordance with the Act.”
- [38]The Statement of Claim says that Mr Gray drafted a mortgage with the intention of protecting his property from Mr Batounas. It says that Mr Gray’s mortgage arrangements failed to protect his property. The result was that, when the trustee in bankruptcy was appointed, there were negotiations about the amount of legal fees that Mr Batounas should recover. In the end, it is asserted the mortgage was released upon payment to Mr Gray of $15,000 for his legal fees.
- [39]The release also seems to be connected to the demand by Batounas that he be paid $80,000. Mr Kordatos did not have that sort of money available, and the end result was that he lost his share in the matrimonial home.
- [40]With respect to the $15,000 paid to Mr Gray, it should be noted that the payment was the subject of litigation in the Federal Magistrates Court. That was because Mr Kordatos sought a review of the trustee’s accounts. His claims, that $15,000 was paid wrongly, were rejected there:
“I am of the opinion that there is no right of action against the trustee in bankruptcy and that the application to the Supreme Court was not out of time… Finally, for there to be rights available to Mr Kordatos in respect of the sum of $15,000 received by Mr Gray from the trustee in bankruptcy to secure the release of the mortgage, it would be necessary for Mr Kordatos to establish that he did not owe the sum of $15,000 to Mr Gray on account of legal fees. While Mr Kordatos has had numerous complaints with Mr Gray about the competency of his legal advice that was not an issue for the trustee in bankruptcy. The trustee was obliged to satisfy himself that there was an amount secured by the mortgage and the delivery of the itemised memorandum of fees was sufficient to satisfy the trustee in that regard”.
That decision was upheld on appeal – see Kordatos v Sweeney (2004) FCA 1487, per Cooper J. That matter is resolved by the judgment.
- [41]It appears from Mr Hackett’s opinion that the bankruptcy order was made on 15 July 1996. It was discharged, according to the statement of claim, in December 1999.
- [42]His basic allegation, disentangled from some other ancillary allegations, is that Mr Gray was wrong in suggesting that he might defeat his creditors by entering into the mortgage in favour of Gray. If the mortgage failed to protect his property, then that would have been because of the substantive law. Perhaps his real claim is, as Mr Hackett says, that it might have been simply cheaper for him to pay out the judgment debt, which he was in a position to do with refinancing, rather than suffer various financial losses because of the arrangement suggested by Mr Gray.
- [43]There is a further allegation, that Mr Gray “appointed Mr Robert Burns, solicitor, to save the plaintiff’s property from the trustee (in bankruptcy) and the creditors, but nothing was achieved.” Burns was paid legal fees of $500, and admitted to Mr Kordatos that “there were problems with the mortgage”. It is alleged that he refused to explain such problems to Mr Kordatos.
- [44]It may be that Mr Kordatos did have some right to claim against Mr Gray because of the mortgage arrangement. It may be that it was his negligent advice that caused unnecessary fees of $15,000 and other losses. However, as Mr Hackett observed, the advice given by Mr Gray must have preceded the entry into the mortgage on 2 March 1995. As a consequence any course of action for negligence and/or breach of contract because of that advice expired at the latest six years after the entering of the mortgage, on 2 March 2001.
- [45]There is nothing to show any possible cause of action against Burns. The alleged facts do not go so far. Because of the passing of time, it is just not possible to say that Eliadis & Associates was negligent, in breach of its retainer, in failing to pursue this matter against Mr Gray, or Burns. There is no prospect of Mr Kordatos succeeding on this issue.
Mr Sweeney
- [46]Mr Sweeney was the trustee in bankruptcy. The retainer does not mention Mr Sweeney. It only mentioned work related to the investigation of prospective claims against Mr Paul Lynch and/or Mr Anthony Gray.
- [47]However, the Instructions to Counsel included this (p 6):
“Is there any avenue against the trustee in bankruptcy (Mr Sweeney)? Was the application to the Supreme Court for the sale of the Chapel Hill property out of time (being over three years from the date of the sequestration order?) Is there any claim against the trustee in bankruptcy for compromising the bill of Mr Gray or any other claim on behalf of Mr Kordatos.”
- [48]It is true that the claims against Mr Sweeney are of a criminal nature. The Statement of Claim alleges that he was fraudulent, and conspired with Mr Gray against the interests of Mr Kordatos. The claims are made about four amounts of money. First, while the accounts from the trustee deny that any sum of money was paid to Mr Gray, Mr Kordatos asserts that $15,000 was paid to him as a bribe. Secondly, he says that Mr Sweeney’s assertion that $1,637.80 was sent to the ATO was wrong as it was not in fact paid to that office. Thirdly, he says that Mr Sweeney dishonestly concealed a payment from the Attorney General’s office of $6,400. Fourthly, it is said that he overpaid himself fees to the extent of $6,687. It is said that Mr Sweeney acted dishonestly and falsified his records with the intention of defrauding Mr Kordatos. There was a conspiracy between Messrs Gray and Sweeney, with the aim of stopping Mr Gray from representing Mr Kordatos.
- [49]The supervision of a trustee in bankruptcy lies exclusively within the jurisdiction of the federal courts. Section 179 of the Bankruptcy Act provides that, on the application of a bankrupt, the court may enquire into the conduct of a trustee in relation to the bankruptcy. It has power to make any order that it thinks proper.
- [50]The passing of time might see a trustee protected from any such proceedings. If an order of release is made then the trustee is discharged from any liability in respect of his administration. See s 183. In cases where the Official Receiver has entered a release on the National Personal Insolvency Index, then the release takes place automatically after seven years.
- [51]Para 21 asserts that Mr Sweeney committed perjury in the Federal Court at Brisbane, in May 2003 by denying that he had paid $15,000 to Mr Gray. That is a reference to the hearing before the Federal Magistrates Court on 21 May 2002. Magistrate Baumann found that no such payout had been made.
- [52]It is hardly conceivable that some or all of the above claims might have been maintainable against Mr Sweeney, on the basis of his dishonesty against Mr Kordatos. No particulars of such extravagant allegations are supplied. Counsel was surely correct in concluding that there was no prospect of success against Mr Sweeney. Even if the position were unclear, the solicitor’s obligation was to proceed “if warranted”. Any solicitor would have had the gravest reservations about any claims against Mr Sweeney. Mr Hackett’s decision did not support any such claim. It was not supported by any of the earlier solicitors.
Hall Payne
- [53]Mr Kordatos asserts that these solicitors accepted a retainer from him and acted on his behalf from February 2000 to August 2000. He goes on to say that they gave advice to him that any claim he had against Mr Gray had lapsed on 15 June 2000, and that any claim was already lost because of the statute of limitations.
- [54]He then goes on to say that Eliadis & Associates told him that his claim against Mr Gray was valid until 10 July 2001. That means, he says, that he was misled by Hall Payne, as he in fact had a valid claim according to his most recent advice.
- [55]He then goes on to assert, in effect, the same set of facts that have been dealt with above.
- [56]Mr Hackett deals with the Hall Payne claim at some length. Mr Kordatos first met Mr Hall on 28 October 1999. It was agreed that there would be a conference with counsel. That was held in the chambers of Mr Goodwin of counsel on 23 February 2000. Mr Kordatos was advised that the only possible cause of action that he might have against Mr Gray was in relation to the payment of some bills of cost. He was told that there was no claim in negligence with respect to the other matters, including defamation proceedings.
- [57]On 15 June 2000 those solicitors advised Mr Kordatos of the combined opinions of Mr Hall and Mr Goodwin. He was advised that his wish to make an application to extend the limitation period was unlikely to succeed. There was some discussion about a “material factor but decisive character” – that being one of the factors to be considered in an application to extend a limitation period.
- [58]It also appears that there was an extensive meeting in Mr Goodwin’s chambers on 6 July 2000, in which Mr Kordatos’ retainer was terminated.
- [59]It may be observed, that the capacity of a court to extend a limitation period exists only in relation to claims for personal injury. That is not this case. There is no prospect of making any such application. Even if there had been a difference of professional opinion about the expired limitation period, there is nothing here to suggest that Messrs Hall Payne and Mr Goodwin were wrong, and that those solicitors could be demonstrated to be wrong, about that issue. Indeed, there is every reason to think that they were right. Mr Hackett was right to say, that he could see no negligence and/or breach of contract on the part of Hall Payne or Mr Goodwin.
David Laws
- [60]The Statement of Claim asserts that Mr David Laws was a solicitor who accepted a retainer from Mr Kordatos in January 2001 to investigate, in effect, the previous solicitors who acted for Mr Kordatos. Mr Terry O'Gorman, solicitor, is named as a potential solicitor. As the pleading asserts, at p 20:
“(6)The plaintiff alleges that in the past he instructed Mr A D Gray,his solicitor at the time, to approach Mr Terry O'Gorman, solicitor, for assistance.
- (7)The plaintiff further alleges that Mr Gray briefed Mr O'Gorman who requested thousands of dollars in order to accept instructions.
- (8)The plaintiff alleges that as a result of his inability to pay Mr O'Gorman, he declined to represent him, as was subsequently explained to the plaintiff by Mr Gray.
- (10)The plaintiff alleges that Mr Gray instructed Mr Terry O'Gorman to represent him by responding to correspondence initiated by Mr Gray and the Queensland Law Society.
- (11)The plaintiff alleges that David Laws was in breach of his retainer in that he failed to investigate Mr Gray … Terry O'Gorman…
- (12)The defendants in these proceedings failed to establish that Mr O'Gorman was in conflict of interest, that he was not supposed to obtain instructions from the plaintiff and that acted against the plaintiff.”
- [61]It can be seen that this is a stray allegation that seems to lead nowhere. The rest of the allegation can be seen as a complaint that Mr Laws did not investigate the previous solicitors, including Mr Gray, Hall and Payne, and Ebsworth and Ebsworth. In turn, Eliadis & Associates were at fault in not taking action against David Laws “for lost opportunity to sue previous solicitors, A D Gray, Robert Burns, Paul Sweeney the trustee, and Hall Payne”.
- [62]It appeared to Mr Hackett in his advice that Mr Laws wrote to Mr Kordatos on 14 May 2001. It was clear to Mr Hackett that the letter amounted to a refusal to accept any retainer on behalf of Mr Kordatos. He did provide some advice in respect of some alleged double payments, but did not appear to form any concluded view about those matters. He could not advise of any potential cause of action against Mr Laws in circumstances where he refused to accept a retainer in the matter and did not in essence provide any advice. He also observed, for the above reasons, that any relevant limitation period had already expired. He was unable to conclude that there was any claim against Mr Laws for negligence or breach of contract.
- [63]That advice seems to be correct. There was no prospect of recovering anything against Mr Laws.
Stephen Lynch
- [64]It is asserted that Mr Stephen Lynch accepted a retainer as a solicitor in January 2002, to investigate Mr Gray for negligence and “for the mortgage in question which he drafted”.
- [65]All of the previous assertions about Mr Gray and Mr Sweeney are repeated, with respect to Mr Lynch. It is said that he was in breach of his contract for failing to recover the various monies which Mr Sweeney had improperly got his hands on. It is then said, in turn, that Eliadis & Associates were at fault in not advising Mr Kordatos adequately, to initiate or continue proceedings in respect of the previous solicitors, including Mr Lynch.
- [66]As set out above, the proceedings in this court against Mr Lynch were discontinued in March 2004. Mr Kordatos agreed to that. There is nothing here to show that Mr Kordatos has any prospect of succeeding against Eliadis & Associates with respect to Mr Lynch. It is necessary to note that Mr Hackett felt that he was unable to draw a statement of claim against Mr Lynch, as he was unable to conclude that there was any claim against him for negligence or breach of contract.
Ebsworth & Ebsworth
- [67]It is curious to note that no separate allegations are made with respect to the other former solicitors, Ebsworth & Ebsworth. That is to say, there is no allegation that Eliadis & Associates failed to investigate any claims against them. However, it is suggested in para 21 that Mr Laws accepted a retainer to investigate them. See para 11 on p 21. Eliadis & Associates are said to be at fault because they failed to advise Mr Kordatos to initiate or continue proceedings in respect of the actions of David Laws.
- [68]However, it is instructive to take account of what Mr Hackett said about the role of Ebsworth and Ebsworth. They were retained by Mr Kordatos in 1997. They wrote a detailed and considered advice on his prospects of a claim for negligence against Mr Gray, dated 24 March 1997. As Mr Hackett puts it, at para 55:
“The letter deals with each of the complaints then made by Mr Kordatos. I have no basis to contradict the facts which they rely upon for their opinion. I have considered the advice and consider it to be appropriate in the circumstances. The advice forms a view that Mr Kordatos did not have available to him a maintainable claim for professional negligence or breach of contract against Mr Gray. I agree with that advice.”
The letter goes on to recount that Ebsworth and Ebsworth were not prepared to act on Mr Kordatos’ behalf on a speculative basis because of the views they had formed on prospects. The letter from Ebsworth and Ebsworth confirms the institution of proceedings against Grays on 12 November 1996. The letter advises Mr Kordatos that should he decide to proceed with his claim with another solicitor, the writ must be served on Mr Gray by 12 November 1997.
- [69]It appears that Mr Kordatos met with representatives of Ebsworth and Ebsworth on 24 March 1997, following which they wrote another letter to him on 1 April 1997 confirming their view that they did not consider his prospects of success against Grays were good.
Conclusion
- [70]Mr Kordatos has taken his complaints to five different firms of solicitors. They have uniformly advised him against proceeding further, on the basis that he has no case, and no prospects of success. There is every reason to think that the collective advices have been competent and accurate. He has had the advice of counsel on two occasions. They reached the same conclusions.
- [71]A Defence was filed on 12 September 2005. That enables the defendant to invoke Rule 293 of the Uniform Civil Procedure Rules:
“(1) A defendant may, at any time after filing a Notice of Intention to Defend, apply to the court under this part for judgment against a plaintiff.
- (2)If the court is satisfied –
- (a)The plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
- (b)There is no need for a trial of the claim or a part of the claim;
the court may give judgment for the defendant against the plaintiff for all or a part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- [72]The amended Statement of Claim is long and repetitive, lacks particularity, and makes assertions that are often irrelevant, or lead nowhere, or are bound to fail. Several of those have been mentioned above.
- [73]However, defects in pleading are not the most serious thing about the claims that Mr Kordatos makes. It appears in these reasons that his claims have no real prospect of succeeding. The passing of time, the fact that he is now taking proceedings against his fifth firm of solicitors, that his complaints depend upon the failure of Eliadis & Associates to recognise and act upon the failure of his first solicitor, Mr Gray, the fact that none of his legal advisors have given him any hope of any prospect of success in these matters and advised him against them, the fact that counsel has already been twice retained on different occasions and their advice has been to the effect that there is no prospect of recovering anything against Mr Gray, the fact that Eliadis & Associates acted for him for only eight weeks, and that they were only obliged to go further “if warranted”, all lead to the conclusion that he has no prospect of succeeding against them. To that conclusion may be added the additional factor in these reasons such as the immunity of an solicitor advocate.
- [74]It is apparent that Mr Kordatos feels passionately about these claims. He has been prepared to go to great lengths to come before this court. However, in 2006, it can be seen that he has no prospect of success with any of his claims. The duty of the court, with respect to both Eliadis & Associates and Mr Kordatos himself, is to give judgment in this action against him.
- [75]The order of the court is that the proceedings against the defendant be dismissed.