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WA Am I Required to Pay Financial Planner's Lawyer Fees?

Discussion in 'Australian Consumer Law Forum' started by Ricky1905, 13 January 2016.

  1. Ricky1905

    Ricky1905 Member

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    HI,

    I would like to take a financial planner to court for not providing appropriate advice. On the assumption that I have a case, and I wanted to represent myself, what would be some of my risks?

    In particular, I am aware that if I were to lose the case, I would have to pay some court fees which are listed here http://www.magistratescourt.wa.gov.au/_files/Magistrates_Court_Fees.pdf, however, would I also be required to pay the financial planner's lawyer fees too? Are there any other significant costs I would need to incur?

    The total of my dispute is approximately $30,000.

    Another tactic I was considering is taking them to small claims court for $10 000 where neither of us can have a lawyer. If I am successful then perhaps I can then escalate to a general claim for the larger sum? My reasoning for this is that I would have formed a precedent in the small claims court which would enable me to seek redress for the remainder of what I have lost.

    Any assistance/guidance will be great!
     
  2. Sophea

    Sophea Well-Known Member

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    Hi,

    With regard to legal fees, the other party's costs that you would have to pay if you are unsuccessful ÅRE their lawyers costs, however, they are not the actual costs charged by their lawyer. They are costs calculated on a standard court scale which are usually a fraction of what a lawyer actually charges. However, the court also has the power to award costs against you on an indemnity basis meaning that this is more than the standard court scale.

    Your second tactic will not work as a plaintiff who has brought a legal action against a defendant and obtained a final judgement cannot initiate another action against he same defendant where
    • the claim is based on the same transaction that was at issue in the first action;
    • the plaintiff seeks a different remedy, or further remedy than was obtained in the first action;
    • the claim is of such nature as could have been joined in the first action.
    This is known as Res Judicata and is a defence to any subsequent proceedings.
     
  3. Ricky1905

    Ricky1905 Member

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    Hi Sophea,

    Thanks for the reply! This was immensely helpful for me.

    Two additional questions:

    1) I engaged with the financial planner in 2008, and the life of the product for 7 years (maturing in 2015). It only came to light that the product was not suitable once the product matured. Because the product was only realised to be defective more than 6 years after the damages began accruing, am I precluded from bringing my case to court?

    I imagine there would be a precedent set with a house that is built, and there being patent and latent defects which only become apparent after 6 years??

    2) If one were to take a claim to court and lose, you mention that the other party's cost of lawyer fees would need to be paid. Also, you mention that the court can award costs on an indemnity basis.

    How would this work if the claimant had no or very little assets? How far in reasonable circumstances would the court go - would one be required to sell necessary items such as home contents/car etc?
    Thanks again,


     

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