MILUTINOVIC v VARDAS [2005] NSWSC 1333

New South Wales Supreme Court

MILUTINOVIC v VARDAS [2005] NSWSC 1333 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 18 May 2005

JUDGMENT DATE : 19 December 2005

JUDGMENT OF : Hulme J at 1

DECISION : See paragraph 53

Nenad Milutinovic PARTIES : George John Vardas

FILE NUMBER(S) : SC 20113/2004

Plaintiff: E Wasilenia COUNSEL : Defendant: B Shields

Plaintiff: Bruce Hocking SOLICITORS : Defendant: Ebsworth & Ebsworth

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Monday, 19 December 2005

20113/2004

Nenad MILUTINOVIC v George John VARDAS

JUDGMENT 1 HIS HONOUR: On 18 May 2005, I heard applications in two somewhat associated matters. In one Coshott and Anor v Vardas, CL 20531/2002 I made orders and delivered reasons for them on the day. These reasons relate to two applications in the second matter. 2 The first of these applications arises pursuant to a Notice of Motion filed by the Defendant on 15 October 2004 in which orders were sought, inter alia:- 1. That the Statement of Claim be dismissed pursuant to Part 13 Rule 5 of the Supreme Court Rules. 2. That, alternatively, the Statement of Claim be struck out pursuant to Part 15 Rule 26 of the Supreme Court Rules. 3. That the Plaintiff's Notice to Produce dated 23 September 2004 be set aside. 3 The second of the applications was one made on behalf of the Plaintiff without filing a Notice of Motion for leave to amend the Statement of Claim in accordance with a document annexed to an affidavit of the Plaintiff's solicitor. That document includes a substantial number of changes to the Statement of Claim. Most are cosmetic or minor but where the changes are of substance I shall refer to them in addition to the allegations in the original document. 4 The Statement of Claim was filed on 13 April 2004. It alleged in effect that the Defendant was a solicitor, that in about July 1991 he had received from the Plaintiff's previous solicitor the file relating to some proceedings that the Plaintiff had commenced against his former employer, the Commonwealth of Australia and that on or about 17 May 1992 the Plaintiff first met Vardas, was told that the latter had taken over the file and the Plaintiff gave Vardas instructions to act on the Plaintiff's behalf. The document also included the following:- " Duty of Care 4 At all material times, Vardas owed the plaintiff a duty to exercise all reasonable skill, care and diligence in the provision of legal services to the plaintiff. Fiduciary Duties 5.1 Vardas owed to the plaintiff the following duties of a fiduciary nature: (a) To account promptly, properly and fully for all monies received by him from or on the Plaintiff's behalf; (b) To apply monies received by him from the Plaintiff as directed by the Plaintiff; (c) Not to prefer his own interests over those of the Plaintiff; (d) To act in good faith and with absolute fairness and openness towards the Plaintiff; (e) To inform the Plaintiff of everything of which he knew which would be of assistance to the Plaintiff in relation to the proceedings." 5 In the proposed Amended Statement of Claim the Plaintiff has added to the duties said to have been owed and of a fiduciary nature the following. (I adopt the renumbering adopted in the amended document.):- 5.1.6 To advise the Plaintiff to seek independent advice in relation to the outcome of the proceedings;