TAS Who to Take Litigation Action Against - Lawyer or Super Fund?

[Lisabet]

I have been divorced for a year and consent orders stated that I would receive 40% of my ex-husband's substantial superannuation. Recently, my ex decided to retire, choosing to access his superannuation as a life pension. Apparently, because he is taking a life pension, I now have to do the same although, I was hoping to take a lump sum so I could buy a house.

I now find out that I should have submitted a form (Form 3) requesting that I receive my allocation as a lump sum. I didn't know about Form 3, my family lawyer didn't know about Form 3 and the super fund didn't advise me of Form 3.

I am considering taking litigation action but need to know whose responsibility it is to provide me with my options (including Form 3) in the event of my ex deciding to retire?

My family lawyer or the super fund?

 

[sammy01]

Your solicitor stuffed up - I can't believe he didn't know about the form

 

[Lisabet]

Thanks Sammy. Yes, they have been very apologetic and didn't charge me for their work towards the end. I've seen a litigation lawyer and he reckons the lawyer's insurance company will fight it tooth and nail - could end up costing $30k.

Do you know at what stage I should have been notified of the form? At the time of setting up consent orders perhaps?

 

[sammy01]

You're wasting your time / money suing a solicitor.... Once the consent orders were stamped by the court, your solicitor should have sent the paperwork to the super fund and they then should have transferred the allocated account into your chosen super fund.

It astounds me how often they stuff up with impunity. In my case the ex's solicitor sent the super fund the 'draft' orders - not stamped by the court. The super fund did nothing - rightly so because the orders didn't have the stamp of the court and as such the ex didn't get her chunk of my super until 3 years later when I realised the mistake and notified her... So she missed out on 3 years worth of interest... All she got out of her solicitor was an apology and I refused to pay the interest because it wasn't my fault...

Short version - these are basic administrative processes and if they can't get that right then begs the question why are we paying them so much...

 

[Rod]

Agree it is hard to sue lawyers over a court matter. There is a legal principle called 'advocates immunity' and I suspect it would be hard to overcome this in your situation as it involves a court case.