Aliferis v Kyriacou

[2000] VSCA 123

Victorian Court of Appeal

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Interrogate

Catchwords

1. Bankruptcy
2. › Provable claims
3. › Demands in the nature of unliquidated damages
4. › Whether claim in tort arising otherwise than by reason of a contract
5. › Professional negligence against solicitor
6. › Retainer relied upon to define scope of duty of care
7. › Whether contract an essential element of the cause of action
8. › Bankruptcy Act 1966 (Cth), s 82(2)
1. Tort
2. › Negligence
3. › Professional negligence
4. › Solicitor's duty of care
5. › Concurrent liability in tort and contract
6. › Whether tortious claim arises 'by reason of' the retainer contract
1. Bankruptcy
2. › Part X deed of arrangement
3. › Release from provable debts
4. › Whether tortious claim released
5. › Bankruptcy Act 1966 (Cth), ss 82(1), 82(2), 187(2), 233(2)(b)(ii)

Quick Take

A claim for unliquidated damages in tort for professional negligence against a solicitor is not a provable debt under s 82(2) of the Bankruptcy Act 1966 (Cth), even where the tortious duty of care arose in the context of a contractual retainer. The correct test is whether a contract or promise constitutes an essential element of the cause of action, not whether the demand has some causal connection to an underlying contractual relationship. Chittick v Maxwell should not be followed on this point. Accordingly, a plaintiff pursuing a tortious claim against a bankrupt solicitor does not require leave from the Federal Court under s 233(2)(b)(ii).