Flionis v Bartlett and Another (546/04) [2006] ZASCA 23; 2006 (3) SA 575 (SCA) ; [2006] 3 All SA 95 (SCA) (22 March 2006)

Flionis v Bartlett and Another (546/04) [2006] ZASCA 23; 2006 (3) SA 575 (SCA) ; [2006] 3 All SA 95 (SCA) (22 March 2006)

The Supreme Court of Appeal held that the appellant, as a practising attorney, owed a legal duty to deal with money deposited in its trust account without negligence, even if the depositor's identity and purpose were not initially communicated. The court found that Bartlett was the true depositor and intended the funds to be held in trust pending the outcome of the gold transaction. Flionis was negligent in failing to verify the source and purpose of the deposit and in acting on suspicious instructions. However, Bartlett was also contributorily negligent for failing to inform Flionis directly, relying instead on Hardaker's assurances. The court apportioned fault at 60% to Flionis and 40%...

Citation
[2006] ZASCA 23
Parties
Appellant: Hirschowitz Flionis; Respondent: Julian Richard Napier Bartlett; Respondent: Bartletts Incorporated
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 March 2006
Case Number
546/04
Procedural Posture
Civil Appeal / Appeal From Johannesburg High Court; Cross Appeal on Interest Order
Outcome
Appeal succeeds with costs; cross-appeal on interest succeeds with costs. Damages reduced to R1,860,000 plus interest at 15.5% from date of summons. Costs of two counsel awarded.
Judges
Howie, Zulman, Navsa, Brand, Van Heerden
Legal Topics
Aquilian Action, Attorneys Trust Account, Contributory Negligence, Apportionment of Damages, Prescribed Rate of Interest, Legal Duty of Care
Delict Civil Procedure Aquilian Action Attorneys Trust Account Contributory Negligence Apportionment of Damages Prescribed Rate of Interest Legal Duty of Care

Case Brief

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Parties

Hirschowitz Flionis

Appellant

Julian Richard Napier Bartlett

Respondent

Bartletts Incorporated

Respondent

Procedural Posture

Civil Appeal / Appeal From Johannesburg High Court; Cross Appeal on Interest Order

Legal Issues

  1. 1 Whether the appellant owed a legal duty to deal with the money in its trust account without negligence.
  2. 2 Whether Bartlett entrusted the money to Flionis.
  3. 3 Whether Bartlett was contributorily negligent and, if so, the appropriate apportionment of damages.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant, as a practising attorney, owed a legal duty to deal with money deposited in its trust account without negligence, even if the depositor's identity and purpose were not initially communicated. The court found that Bartlett was the true depositor and intended the funds to be held in trust pending the outcome of the gold transaction. Flionis was negligent in failing to verify the source and purpose of the deposit and in acting on suspicious instructions. However, Bartlett was also contributorily negligent for failing to inform Flionis directly, relying instead on Hardaker's assurances. The court apportioned fault at 60% to Flionis and 40%...

Court Disposition

Appeal succeeds with costs; cross-appeal on interest succeeds with costs. Damages reduced to R1,860,000 plus interest at 15.5% from date of summons. Costs of two counsel awarded.

Orders

  • Paragraph 1 of the order of the court below is altered to read: 'R1,860,000 plus mora interest at 15.5% from the date of service of the summons until the date of payment.'
  • Appellant to pay costs of cross-appeal, including costs of two counsel.