1. The application is dismissed for the reasons contained in the written reasons.
2. Any application for costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) must be made in writing to the Tribunal within 14 days of the date of this order as follows:

(a) The applying party must set out in full the submissions of the party on costs and the submissions must be served on the other party at the time of filing with the Tribunal.

(b) The responding party must within 14 days of receiving the costs' application, file with the Tribunal and serve on the other party any submissions on costs.

(c) The applying party may within seven days of receiving those submissions file with the Tribunal and serve on the other party a reply to the responding party's costs submissions.

(d) The Tribunal intends to make any decision regarding costs on the papers.

1. In June 2017, the applicant Fima Pekar ('Mr Pekar') engaged the respondent KCL Law ('KCL') to conduct legal work on his behalf relating to his bankruptcy. Shortly after, a dispute arose between Mr Pekar and KCL which resulted in Mr Pekar withdrawing his instructions to KCL.
2. Mr Pekar commenced this proceeding in the Tribunal by way of an Application dated 10 January 2023 (date stamped as having been lodged with the Tribunal at 11:42 am on 9 January 2023) seeking compensation of $100,000.00.
3. In the Application form under the heading 'What is the problem with the goods and/or services?' Mr Pekar wrote 'Aggravated Unsatisfactory Professional Conduct' and then provided some detail in the following dot points:
   • Breached the Costs Agreement entered into by the parties;
   • Failed to comply with the Legal Profession Uniform Law Application Act 2014 (Vic));
   • Failed to provide 'qualified legal advice';
   • Failed to disclose a conflict of interest;
   • Refused to comply with lawful instructions provided by Mr Pekar;
   • Excessive charging;
   • Non-authorised deductions from trust monies to pay KCL's costs.
4. To the extent that Mr Pekar seeks orders relating to the professional conduct of KCL, or professional misconduct, his claim is misconceived.[1]
5. Based on the dot points referred to above included by Mr Pekar in his Application, the claim appears to be a claim in negligence and/or a claim for a breach of consumer guarantees under the Australian Consumer Law and Fair Trading Act 2012 ('ACLFTA'). Mr Pekar as the client was clearly a consumer of legal services and KCL a trader. As such the relationship between the parties is properly characterised as a consumer-trader dispute under the ACLFTA, and including under section 182 of the ACLFTA the Tribunal has jurisdiction to hear and determine such a dispute as well as a claim for negligence.
6. Section 60 of the Australian Consumer Law (Victoria) ('ACL') provides as follows:

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

1. Section 60 of the ACL provides a guarantee by the supplier of a service to a consumer that the services would be rendered with due care and skill. This means that the supplier must use an acceptable level of skill or technical knowledge when providing services and take all necessary care to avoid loss or damage when providing the services.

1. A large number of procedural directions hearings have been conducted in this matter. At a directions hearing conducted on 16 December 2024, the Tribunal dealt with an application by Mr Pekar to increase the amount of compensation he was seeking against KCL.
2. At the conclusion of the directions hearing on 16 December 2024, the Tribunal allowed the following amendments to Mr Pekar's claim:

(i) The amount of $375,000 is added to the claim for the loss of the family home;

(ii) The amount claimed for past legal costs is increased from $18,329.00 to $20,001.00;

(iii) The amount claimed for rent is increased from $42,146.00 to $55,790.00.

1. The remaining amendments proposed by Mr Pekar were refused by the Tribunal.
2. On 25 September 2025, that is approximately three weeks prior to the final hearing scheduled in this matter, Mr Pekar lodged an application with the Tribunal seeking to increase the amount of compensation being sought by him to $1,168,835.00.
3. By order made on 24 April 2025, the Tribunal directed that any preliminary issues to be raised by either party would be dealt with at the commencement of the final hearing on 14 October 2025. As such, his application to increase the quantum of his claim was left to be considered at the final hearing.
4. At the final hearing on 14 October 2025, I indicated to the parties that after taking into account the history of this proceeding and in particular the length of time to get it to the final hearing, and noting that only one day had been scheduled for the final hearing, I was reluctant to take up time on 14 October 2025 determining Mr Pekar's application to increase the quantum of his claim. Both parties agreed and consented to the hearing proceeding on 14 October 2025 solely to determine the question of liability, and if liability was found against KCL, a further hearing could then be scheduled to consider the application to increase the quantum sought to be claimed and to determine what, if any, compensation would be payable to Mr Pekar.
5. For the reasons more fully set out below, the Application lodged by Mr Pekar will be dismissed, and as such, no further hearing as to quantum will be necessary.

1. It is necessary to set out in some detail the facts that led to this proceeding being commenced by Mr Pekar. The below are taken from the Tribunal Book filed in the proceeding in accordance with the Tribunal's orders and from evidence given during the hearing.
2. Mr Pekar was made bankrupt by order of the then Federal Circuit Court of Australia on 2 October 2014.
3. On 13 May 2017, orders were made in the Federal Circuit Court for the possession and the sale of Mr Pekar's family home.
4. On 13 June 2017, Mr Pekar met with Andrew Ball, a solicitor in the employ of KCL. Following that meeting Mr Ball sent Mr Pekar a letter of engagement dated 14 June 2017[2]. KCL was engaged by Mr Pekar to seek an annulment of the bankruptcy.
5. The engagement letter included a Disclosure Statement and Costs Agreement. Mr Pekar signed the Costs Agreement, dated it 19 June 2017 ('the Costs Agreement')[3] and returned the signed copy to KCL.
6. In the engagement letter, Mr Ball set out his advice that to seek an annulment of the bankruptcy that Mr Pekar would need to pay all of the proved debts in the bankruptcy, interest on the debts and all costs, charges and expenses of the bankruptcy including the trustee's remuneration. In the engagement letter, Mr Ball acknowledged receiving from Mr Pekar the sum of $20,000.00 on account of KCL's costs and disbursements.
7. Mr Ball delivered a brief to Mr Simon Rubenstein of counsel to seek advice in relation to the annulment of the bankruptcy[4]. A conference was held on 22 June 2017 between Mr Pekar, Mr Ball and Mr Rubenstein.
8. Mr Rubenstein was called by KCL to give evidence in the hearing. A copy of Mr Rubenstein's notes in relation to the conference were tendered during the hearing.[5]
9. Following negotiations conducted by Mr Ball on behalf of Mr Pekar with the Trustee in Bankruptcy of Mr Pekar's bankrupt estate ("the Trustee"), Mr Ball wrote to the Trustee on 27 June 2017[6] proposing that the order for possession and sale of Mr Pekar's family home be stayed on the following terms:

(i) By 30 June 2017, there be payment of $200,000.00 into an interest bearing account in the name of the Trustee;

(ii) The $200,000.00 be applied to payment of creditors and remuneration of the Trustee's legal costs and disbursements;

(iii) The Trustee, in accordance with the Bankruptcy Act 1966 (Cth), agree to:

(a) call for and adjudicate on proofs of debt;

(b) his legal costs be taxed; and,

(c) his fees be reviewed.

(iv) Any shortfall in funds in the interest bearing account be topped up within 21 days failing which the Trustee could proceed to immediately enforce the order for possession and sale of Mr Pekar's family home;

(v) Any excess funds in the interest bearing account be repaid to Mr Pekar within 21 days; and,

(vi) The order for possession and sale be otherwise stayed to give effect to the above proposal.

1. The Trustee accepted the above proposal by letter dated 27 June 2017 from his solicitors to Mr Ball[7].
2. In accordance with the agreement reached with the Trustee ('the Agreement') a sum of $200,000.00 was paid by Mr Pekar pursuant to the Agreement[8].
3. Further in accordance with the Agreement, the Federal Court of Australia on 18 July 2017 made an order by consent to stay the earlier order that Mr Pekar and his wife deliver up vacant possession of their family home pursuant to the sequestration order ('the Stay').
4. Mr Ball on behalf of Mr Pekar sought to reach agreement with the Trustee as to the Trustee's costs and issues associated with proofs of debts of the bankrupt estate. Such efforts were unsuccessful. As a result of the costs issues with Trustee not being resolved, the bankruptcy was not annulled. (However, Mr Pekar was discharged from bankruptcy on 7 November 2017, following receipt by him of a letter dated 11 December 2017 from the Australian Financial Security Authority[9].)
5. There was then a hiatus in instructions from Mr Pekar until April-May 2018.
6. Prior to Mr Pekar contacting Mr Ball in April 2018, Mr Pekar communicated directly with the Trustee in relation to debts of the bankrupt estate.[10]
7. In April 2018, Mr Pekar presented Mr Ball with an application document that he had prepared for issue in the Federal Court of Australia ('the FCA Application') against the Trustee[11].
8. In the FCA Application, Mr Pekar sought various orders from the Court including an order that the $200,000.00 paid to the Trustee be returned to Mr Pekar. The document prepared by Mr Pekar made a number of allegations against the Trustee, including allegations of fraudulent conduct by the Trustee.
9. Mr Ball declined to lodge the FCA Application with the Court as he was of the opinion the FCA Application was without merit.[12]
10. Under cross-examination, Mr Pekar stated that Mr Ball refused to issue the FCA Application in the Federal Court because Mr Ball told him that the Trustee was a friend of Mr Ball. Mr Pekar offered no evidence, neither oral nor written, in support of this allegation.
11. On 9 May 2018 Mr Ball delivered a further brief to Mr Rubenstein to seek advice in relation to the FCA Application. A conference took place on 10 May 2018. Mr Pekar attended the conference with Mr Ball and Mr Rubenstein.
12. Mr Rubenstein stated in his evidence that he was not prepared to 'put his name' to the FCA Application as in his opinion the document would require extensive re-drafting.
13. During cross-examination by Ms Dawson, Mr Pekar rejected the proposition put to him by Ms Dawson that both Mr Ball and Mr Rubenstein were entitled to refuse to proceed with the FCA Application if they were of the opinion the Application has no merit. Mr Pekar answered that it was not for either Mr Ball or Mr Rubenstein to question the merits of the FCA Application. He said that was the role of the Court to deal with the merits of his proposed claim. He further stated that as lawyers both Mr Ball and Mr Rubenstein were bound to act on his instructions 'no matter what'.
14. Mr Rubenstein also advised that Mr Pekar should lodge a claim with the Australian Financial Security Authority ('AFSA') objecting to the Trustee's remuneration.
15. Mr Pekar acted in accordance with Mr Rubenstein's advice and wrote to AFSA on two occasions following the conference[13]. In his correspondence to AFSA, Mr Pekar appears to have raised several complaints concerning the conduct of the Trustee.
16. On 24 July 2018, Mr Pekar received a response from AFSA that the Inspector-General in Bankruptcy had no power to order the Trustee to adopt a certain course of action or to refrain from a certain course of action and that any such orders could only be made on an application to the Federal Court of Australia or Federal Circuit Court. Advice was provided as to time limits that applied to the commencement of any such court proceedings.
17. On 24 July 2018, Mr Pekar wrote to Mr Ball instructing Mr Ball to issue proceedings against the Trustee in the Federal Court of Australia as soon as possible to recover the $200,000.00 that Mr Pekar had paid.[14] In his letter to Mr Ball, Mr Pekar stated that he had 'no interest in any legal advice related to this matter' and that Mr Ball was to commence proceedings as soon as possible.
18. On 26 July 2018, Mr Pekar wrote to Mr Ball withdrawing his instructions to KCL to act for him and demanding that no further monies be deducted from the monies in KCL's trust account on account of costs incurred after 10 May 2018[15]. Furthermore, Mr Pekar accused KCL of not following his instructions and making him 'pay for jobs with no results'.
19. Mr Ball acknowledged and confirmed the termination of KCL's retainer in a letter to Mr Pekar on 27 July 2018.[16]
20. On 14 August 2018, Mr Pekar commenced a proceeding in the Federal Court of Australia against the Trustee seeking repayment of the $200,000.00 on the grounds that as the Trustee had not admitted any debts of Mr Pekar's bankrupt estate that this meant the bankrupt estate was debt free and there was no basis for the $200,000.00 to be held by the Trustee.
21. In a judgment dated 3 April 2019, the Federal Court of Australia found that Mr Pekar's contentions were not made out and that he was not entitled to a refund of the $200,000.00 on the basis that his bankrupt estate was debt free[17].
22. The Court did however raise a question as to whether Mr Pekar was entitled to a refund of the $200,000.00 on the basis that the Trustee had breached the Agreement in that he had failed to admit or reject proofs of debt within the time frame set out in the Bankruptcy Act 1966 (Cth) or within a reasonable timeframe. The Court adjourned the matter to give Mr Pekar an opportunity to consider whether he wished to pursue recovery of the $200,000.00 on such grounds.[18]\
23. Mr Pekar elected to pursue recovery of the $200,000.00 on the grounds set out above.
24. In a judgment delivered on 18 November 2019, the Court made a declaration that the Trustee had breached the Agreement, and that Mr Pekar was entitled to a refund of the $200,000.00 less certain amounts the Trustee was statutorily required to pay to the Commonwealth. A sum of $180,102.24 was ordered to be refunded to Mr Pekar[19].
25. Following the decision of the Federal Court of Australia, the trustee[20] of Mr Pekar's bankrupt estate sought and obtained a lifting of the Stay. Subsequently the trustee sold the family home of Mr Pekar and his wife so as to realise Mr Pekar's interest in those premises.

Breach of Costs Agreement Entered into by the Parties

1. The Costs Agreement entered into by Mr Pekar and KCL constitutes a contract for the provision of legal services.
2. Mr Pekar claims that KCL breached the Costs Agreement by deducting costs from monies in their trust account after Mr Pekar had terminated their instructions on 24 July 2017.
3. Paragraph 11 of the Costs Agreement sets out KCL's entitlement to its costs on them ceasing to act for Mr Pekar.
4. Paragraph 11.1 entitled Mr Pekar to end his engagement with KCL at any time in writing. Mr Pekar did this in his letter to KCL dated 24 July 2017.
5. Paragraph 11.2(h) entitled KCL to cease acting for Mr Pekar if he revoked KCL's right to deduct legal costs from monies held on his behalf in KCL's trust account. Mr Pekar revoked this right in his letter to KCL dated 24 July 2017.
6. Paragraph 11.5 provides that on KCL ceasing to act for Mr Pekar under the terms of paragraph 11 then all legal costs owing to KCL became immediately due and payable.
7. The Tribunal finds that Mr Pekar withdrawing his instructions to KCL by his letter dated 24 July 2017, and/or revoking KCL's right to deduct its costs from monies held in its trust account, KCL immediately became entitled to be paid all legal costs then owing to it by Mr Pekar.
8. I find that KCL did not breach the Costs Agreement when it deducted the balance of legal costs due to it as of 24 July 2017. KCL had a right under the Costs Agreement to transfer such funds from the trust account for its legal costs. This element of Mr Pekar's claim fails.

1. After withdrawing his instructions to KCL, and KCL deducting the balance of legal costs owing to it, Mr Pekar requested and received an itemised bill of costs from KCL. Mr Pekar then proceeded to have the bill of costs taxed in the Costs Court. The itemised bill of costs claimed a total sum of $17,426.80 by way of costs, disbursements and GST.
2. By order made on 28 August 2019 (and amended on 29 August 2019) the Costs Court has determined issues between Mr Pekar and KCL relating to the itemised bill of costs. To the extent that the claim by Mr Pekar in this proceeding is in relation to the quantum of costs charged by KCL, that issue is subject to a res judicata[21]. Mr Pekar cannot seek to re-litigate that issue in this proceeding. This element of Mr Pekar's claim fails.
3. The order made by the Costs Court on 28 August 2019 (amended on 29 August 2019) ordered that KCL refund Mr Pekar the sum of $3,158.56. Although the order of the Costs Court is not clear, it is assumed that the refund ordered to be made is in relation to the legal costs component of the itemised bill (as opposed to the claims for disbursements and GST).
4. The fact that the Costs Court reduces a solicitor's itemised bill of costs does not of itself prove that the solicitor has engaged in excessive charging.
5. Mr Pekar provided no evidence to support his allegation of excessive charging by KCL. He has not proved this element of his claim.

Failure to Comply with the Legal Profession Uniform Law Application Act 2014 (Vic)

1. It appears from the material provided to the Tribunal by Mr Pekar that this claim relates to two separate allegations:

(i) The briefing of counsel without instructions from Mr Pekar; and,

(ii) A refusal by KCL to comply with instructions provided by Mr Pekar.

1. Paragraph 10 of the Disclosure Statement that accompanied the Costs Agreement states that KCL may need to engage a barrister to provide specialist advice.
2. By letters dated 19 June 2017[22] and 10 May 2018[23] by Mr Pekar to KCL, Mr Pekar instructed KCL to brief counsel for advice. The heading of the letter dated 10 May 2018 states that it sets out instructions to Mr Ball and to 'cunsul S.Rubenstein (sic)'.
3. On the two occasions that Mr Ball briefed Mr Rubenstein for advice, a conference with Mr Rubenstein was arranged. Mr Pekar attended both conferences.
4. In cross-examination Mr Pekar stated that he could not recall if a conference had been arranged with Mr Rubenstein. When it was put to Mr Pekar that a conference had in fact been arranged for 10 May 2018, Mr Pekar's response was 'maybe'.
5. In relation to the conference with Mr Rubenstein that occurred on 10 May 2018, Mr Ball's handwritten notes of that conference[24] state that Mr Pekar and his wife attended the conference. This handwritten note represents a contemporaneous record of that conference.
6. Mr Pekar's evidence in relation to the conference on 10 May 2018 was vague at best. I prefer the evidence constituted by Mr Ball's contemporaneous notes of the conference that record Mr Pekar and his wife being in attendance.
7. I find that not only was Mr Pekar aware of the briefing of Mr Rubenstein on the two occasions, but that he instructed Mr Ball to deliver a brief to Mr Rubenstein and attended the subsequent conference on each occasion.
8. This element of Mr Pekar's claim fails.

1. Mr Pekar in his evidence said that in April 2018, Mr Ball refused to commence legal proceedings against the Trustee because the Trustee was a friend of Mr Ball. With the exception of the assertion in his oral evidence, Mr Pekar offered no evidence in support of this statement.
2. The evidence on behalf of KCL is that Mr Ball refused to commence the FCA Application against the Trustee because Mr Ball was of the opinion that the proposed Application had no merit. This opinion of Mr Ball is contained in the Brief he delivered to Mr Rubenstein on 9 May 2018[25].
3. If Mr Ball had refused to commence the FCA Application against the Trustee due to a friendship it would be highly unlikely in my opinion he would have delivered the brief to Mr Rubenstein on 9 May 2018 seeking advice. If Mr Rubenstein had advised that the FCA application could be issued or had re-drafted the application, Mr Ball would be left in the exact same situation, having to refuse to commence the proceeding due to his friendship with the Trustee.
4. As set out above, Mr Pekar attended the conference with Mr Rubenstein on 10 May 2018. At that conference Mr Pekar was advised that he should make a complaint to AFSA in relation to the Trustee's costs and proved debts of the bankrupt estate. Mr Pekar accepted that advice and wrote direct to AFSA.
5. In July 2018, Mr Pekar received correspondence from AFSA in which he was advised that he would need to commence proceedings in the Federal Court of Australia within a specified timeframe.
6. On 24 July 2018, Mr Pekar instructed Mr Ball in writing to commence legal proceedings against the Trustee in the Federal Court of Australia.
7. In my opinion, Mr Pekar's actions on 24 July 2018 were inconsistent with his evidence that Mr Ball had earlier refused to commence legal proceedings against the Trustee because the Trustee was a friend of Mr Ball.
8. If Mr Ball had said that he would not commence legal proceedings against the Trustee due to a friendship, why would Mr Pekar three months later instruct Mr Ball to commence legal proceedings against the Trustee? In my opinion the fact that Mr Pekar then withdrew his instructions to Mr Ball two days later does not make any difference. To have given Mr Ball the instructions on 24 July 2018 in the first place is inconsistent with Mr Ball having stated three months earlier that he was a friend of the Trustee.
9. If the Trustee is a friend of Mr Ball, it would be reasonable to expect that he would have disclosed his friendship in June 2017, when he first received instructions from Mr Pekar.
10. In my opinion, the refusal to commence the FCA Application against the Trustee in the circumstances alleged by Mr Pekar is so highly improbable that I cannot be satisfied on the balance of probabilities that Mr Ball made the alleged statement.
11. As set out above, Mr Ball did not attend the hearing. Evidence by Mr Ball was contained in an affidavit he swore on 17 June 2019, in relation to a costs proceeding in the Costs Court commenced by Mr Pekar.
12. On or about 1 April 2025, the Tribunal was advised that Mr Ball was seriously unwell and was unavailable to attend a hearing and give evidence. On 24 April 2025 the Tribunal made orders by consent of the parties that should Mr Ball remain unfit to give evidence at the hearing on 14 October 2025, the hearing was to proceed without Mr Ball being required to give evidence or be cross-examined.
13. At the commencement of the hearing on 14 October 2025 Ms Dawson advised me that Mr Ball remained medically unfit to attend the hearing. She tendered a medical certificate dated 29 September 2025 confirming the same.
14. Where a plaintiff calls evidence on a point in a hearing that establishes a case for the defendant to answer and the defendant does not call a witness or evidence in response, an adverse inference may be drawn against the defendant that evidence was not called as it would not have been helpful to the defendant[26]. Whilst this rule of evidence is not directly applicable in proceedings before the Tribunal,[27] the Tribunal is entitled to refer to it when assessing the probative value of evidence[28].
15. Mr Pekar consented to the hearing proceeding in the absence of Mr Ball. I am satisfied that KCL had a reasonable explanation for Mr Ball not being called to give evidence during the hearing. I am of the view that the rule in Jones v Dunkel has no application in this proceeding and as such, no adverse inference can be drawn by Mr Ball's absence from the hearing.
16. Accordingly I find that this element of Mr Pekar's claim fails.

Refusal to Act on Instructions and Failure to Provide 'Qualified Legal Advice'

1. Whilst the above heading encompasses two separate complaints made by Mr Pekar, it is appropriate that they be addressed together.
2. As set out above, when presented with the FCA Application, Mr Ball stated that he would not lodge it with the Court as he was of the opinion that it lacked merit.
3. In the conference held with Mr Rubenstein on 10 May 2018, Mr Rubenstein was also not prepared to put his name to the FCA Application in the form presented by Mr Pekar.
4. In his evidence during the hearing, Mr Rubenstein said that the FCA Application would require extensive re-drafting. He said that he cannot recall being briefed to advise on many draft applications to a court that allege fraud. As such, he said that he could remember this particular document. He stated that he would need to be 'very, very comfortable' before he would be prepared to sign his name as counsel on such an application.
5. In the cross-examination of Mr Pekar, he stated that Mr Ball was obliged to act on his instructions to lodge the FCA Application with the Court. Mr Pekar stated that Mr Ball 'had to file no matter what'. In response to it being put to Mr Pekar that Mr Ball declined to lodge the FCA Application as he thought it was without merit, Mr Pekar responded by saying that it was not for the lawyer to question the document and that Mr Ball must follow his instructions.

1. It was put to Mr Pekar that Mr Ball was bound by Rule 17 of the Solicitors' Professional Conduct Rules[29] and as such Mr Ball was required to exercise his own independent professional judgment in relation to the FCA Application. Mr Pekar dismissed this proposition on the basis that as the FCA Application was never lodged with the Court, Rule 17 was irrelevant.
2. Mr Rubenstein gave evidence that he did not consider that he was bound to follow Mr Pekar's instructions in relation to the FCA Application without question.
3. As a lawyer admitted to practice in Victoria, Mr Ball owed professional duties to Mr Pekar as his client but also owed professional duties to the Court. As a lawyer is considered to be an officer of the Court, the lawyer's duties to the Court are considered paramount and will prevail in the event of any conflict between a duty owed to the Court and a duty owed to a client[30].
4. The paramount duty owed to the Court by a lawyer carries with it a level of independence. A lawyer is not the 'hired gun' of his or her client but must bring an independent judgment to each matter[31].
5. Specifically in relation to the allegations of fraudulent conduct by the Trustee contained in the FCA Application prepared by Mr Pekar, the duties imposed on both Mr Ball and Mr Rubenstein are particularly strict in relation to such serious allegations[32]. It was appropriate for Mr Ball to question the merit of such allegations, and appropriate for Mr Rubenstein to state that he would need to be 'very, very comfortable of the allegations before he would be prepared to put his name to the document as counsel.
6. As set out above, on 24 July 2018 Mr Pekar gave written instructions to Mr Ball to commence legal proceedings in the Federal Court of Australia against the Trustee. In his letter of instructions, Mr Pekar said 'No offence intended but I have no interest in any LEGAL ADVICE RELATED TO THIS MATTER. THE JUDGE WILL MAKE A RULLING (sic)'[33].
7. Two days later, Mr Pekar withdrew his instructions to Mr Ball. In these circumstances there can be no complaint made that Mr Ball failed or refused to act on Mr Pekar's instructions; he was simply given no time in which to act on the instructions.
8. In relation to Mr Pekar's complaint about the legal advice he was given by Mr Ball, I interpret from the documents filed in this proceeding and from his oral evidence that the complaint goes to the adequacy and/or appropriateness of advice given to Mr Pekar.
9. When Mr Pekar first engaged KCL to act on his behalf it was agreed to seek the advice of Mr Rubenstein. During the conference held with Mr Rubenstein on 22 June 2017, advice was provided to Mr Pekar in relation to negotiating with the Trustee. That advice must have been accepted by Mr Pekar as KCL, on Mr Pekar's instructions, proceeded to act in accordance with it.
10. As set out above, both Mr Ball and Mr Rubenstein declined to lodge the FCA Application prepared by Mr Pekar with the Court. In the case of Mr Ball, he stated that it was due to his opinion that the document lacked merit. In the further conference held with Mr Rubenstein advice was provided to Mr Pekar in relation to him pursuing his complaints about the Trustee with AFSA. The evidence clearly shows that Mr Pekar proceeded to act on that advice.
11. In response to the letter received by Mr Pekar from AFSA on 24 July 2018, Mr Pekar gave written instructions to KCL to brief Mr Rubenstein and to issue proceedings against the Trustee as soon as possible. Mr Pekar made it very clear that he did not want any legal advice from KCL.
12. Mr Pekar did not set out either in his documentation or his evidence where the advice given to him by KCL was defective, inadequate or inappropriate. To the extent that this was the case Mr Pekar was seeking to make, he has not proven any such claim.
13. After withdrawing his instructions to KCL, Mr Pekar commenced legal proceedings in the Federal Court of Australia himself. Mr Pekar did not produce a copy of the points of his claim lodged in the Federal Court. The copy of the judgment of Justice Moshinsky dated 3 April 2019 sets out that the claim made by Mr Pekar was for the return to him of the $200,000.00 paid to the Trustee pursuant to the Agreement on the basis that Mr Pekar's bankrupt estate was free from any debts.[34]
14. After considering each of the contentions raised by Mr Pekar in the hearing, the Judge found that none of Mr Pekar's arguments were made out and that Mr Pekar was not entitled to a refund of the $200,000.00 on the basis he propounded. His Honour did however raise an issue as to whether Mr Pekar was entitled to a return of the $200,000.00 on the basis of a breach of the Agreement by the Trustee.
15. At the conclusion of a further hearing, the Judge made a declaration that the Trustee had breached the Agreement in that the Trustee did not proceed to administer the bankrupt estate in a timely manner which was a breach of the Agreement and the Bankruptcy Act 1966. The Judge held that the Trustee was liable to repay the sum of $180,102.24 to Mr Pekar.
16. The Trustee then sought an order that the stay order made by the Court on 18 July 2017 should be lifted on the basis that the stay was granted to give effect to the Agreement and if an order was to be made for the return of the balance of the $200,000.00 to Mr Pekar, then the basis for the stay no longer existed and the stay should be lifted. The Court accepted the Trustee's contention.
17. As a consequence of the lifting of the stay order, the Trustee proceeded to sell the family home owned by Mr Pekar and his wife.
18. Neither KCL nor Mr Ball had any involvement in the conduct of the Federal Court proceedings instigated directly by Mr Pekar after he had terminated KCL's instructions to act for him. As their instructions had been withdrawn by Mr Pekar on 26 July 2018, they provided no advice to him.
19. The arguments put forward by Mr Pekar in the Federal Court were all rejected by the Court. Notwithstanding this, the Judge stated that there was an issue as to whether Mr Pekar was entitled to a return of the $200,000.00 on another basis.
20. In a subsequent judgment dated 7 August 2019, Justice Moshinsky found that there had been a significant delay in the administration of the bankrupt estate by the Trustee.
21. In the course of his judgment on 7 August 2019, Justice Moshinsky stated[35]:

In the present circumstances, there has been significant delay in administering the estate ... The commercial purpose of the Agreement has not been given effect in a timely way and Mr Pekar seeks return of his money. It is true that (as I raised with Mr Pekar in the course of the hearing) this may work to his disadvantage (because the Trustee has indicated that he will immediately apply to have the stay of orders of Tracey J lifted), but I have insufficient material to consider whether or not the return of the money is in Mr Pekar's interests (emphasis added)

1. The Court adjourned the proceeding to a mention hearing on a later date to determine what orders should then be made.
2. At the further hearing on 18 November 2019, Justice Moshinsky recorded the following in his judgment[36]:

Mr Pekar appeared for himself at the hearings that led to the April 2019 Reasons and the August 2019 Reasons. However, following delivery of the August 2019 Reasons, I made a pro bono referral (with the consent of Mr Pekar). Mr Murano of counsel agreed to act for Mr Pekar and appeared at a case management hearing on 19 September 2019 and at the hearing today. He prepared outlines of submissions in connection with those hearings, affidavits and other documents.

1. It is very clear from the above passages taken from the judgments of Justice Moshinsky that Mr Pekar was put on notice of the risk he faced in pursuing a refund of the monies paid by him under the Agreement.
2. Notwithstanding the warning given by the Judge, Mr Pekar pressed for orders to be made for money to be returned to him. As set out by the Judge, at the final hearing Mr Pekar had the benefit of pro bono counsel representing him.
3. In my opinion, the consequences that flowed from the Federal Court proceedings commenced by Mr Pekar after July 2018 were not in any way the result of any act or omission on the part of KCL and or Mr Ball. It would appear from the judgments of Justice Moshinsky that the decision to press for a return of some of the $200,000.00 originally paid to the Trustee was the decision of Mr Pekar alone. In such circumstances, there is no merit at all in the claim of Mr Pekar that he suffered any loss as a result of KCL failing to act on any instructions given to it by Mr Pekar.
4. Alternatively, Mr Pekar's complaint in relation to Mr Ball's refusal to lodge the FCA Application could be seen to be a claim for breach of contract by KCL and/or a failure to deliver legal services to Mr Pekar with due care and skill in breach of section 60 of the ACL.
5. In relation to any allegation of breach of contract, Mr Pekar gave no evidence to show that the refusal by Mr Ball resulted in Mr Pekar losing the ability to commence legal proceedings against the Trustee due to the expiry of any limitation period.
6. As set out above, Mr Pekar, as a self-represented litigant proceeded to commence legal proceedings against the Trustee.
7. As no limitation period was missed due to Mr Ball's refusal to lodge the FCA Application, Mr Pekar cannot prove any loss for any alleged breach of contract.
8. In relation to section 60 of the ACL, the provision of services with 'due care and skill' requires that the provider of the services, in this case KCL:

(i) used an acceptable level of skill or technical knowledge when providing its services to Mr Pekar; and,

(ii) took all necessary care to avoid loss or damage when providing the services.

1. In relation to considering what the provision of services by a lawyer with due care and skill means, Justice Bell in Goddard Elliott v Fritsch[37] ('Goddard Elliot') reviewed the authorities and concluded at [417]:

...the standard of care is that which is reasonably to be expected of a practitioner of ordinary skill and competence. In the application of that standard, account is taken of any special skill or competence which the practitioner has or professes to have. Where the practitioner has or professes to have special skill or competence, the standard of care is that which is reasonably to be expected of an ordinary practitioner having that special skill or competence. That does not involve the application of a different or higher standard of care but one which reflects what is reasonably to be expected of an ordinary practitioner having or professing to have the special skill or competence concerned. The attributes of the client, including their vulnerability, are taken into account in determining the scope and application of the standard of care. In particular cases there may be a duty to bring to the client's attention and advise in relation to matters, including taxation matters, giving rise to foreseeable risks to which the client is reasonably likely to attach significance.

1. At [419] of the reasons in Goddard Elliott, his Honour went on to say:

...in cases involving an allegation of negligence against a solicitor or barrister, expert evidence is not necessary to establish the scope and alleged breach of the standard of care, which was owed by the lawyer to the client, since the court is considered able to determine those issues for itself. (footnote omitted)

1. The High Court in Hawkins v Clayton[38] at [27] found that the duty owed by a solicitor to their client:

...may well give rise to a duty of care on the part of the solicitor which requires the taking of positive steps, beyond the specifically agreed professional task or function, to avoid a real and foreseeable risk of economic loss being sustained by the client.

1. For the reasons given above, I am satisfied that KCL, and in particular Mr Ball, complied with the standard of care expected by a lawyer to his or her client. Mr Ball when presented with the FCA Application exercised due care and skill in the independent judgment exercised by him. On the evidence presented, I am not satisfied that KCL breached the consumer guarantee that the legal services rendered by it to Mr Pekar were provided without due care and skill.
2. This element of Mr Pekar's claim has not been proven.

1. For the reasons set out above, Mr Pekar has not proven that KCL is liable for any loss he claims in this proceeding to have suffered.
2. As set out at the outset, with the consent of both parties the hearing on 14 October 2025 proceeded on the basis that I would determine the issue of liability and if I found KCL was liable to Mr Pekar for some loss then a further hearing would be conducted in relation to the issue of the quantum of any losses to which Mr Pekar may have been entitled.
3. On the basis that I have determined that KCL is not liable to Mr Pekar for any loss, no further hearing is required.
4. The order of the Tribunal will be that this proceeding is dismissed.

[1] Under the Legal Profession Uniform Law (Victoria) only the Victorian Legal Services Commissioner as the designated local regulatory authority may prosecute legal practitioners for disciplinary matters including allegations of professional misconduct.

[2] Tribunal Book updated 30 September 2025 ('TB') page 254.

[10] TB page 300. Letter dated 2 March 2018 by Mr Pekar to the Trustee. In this letter Mr Pekar makes reference to a letter from the Trustee to Mr Pekar dated 28 February 2018.

[12] Exhibit 5 - Brief to Counsel dated 9 May 2018.

[13] TB page 325. Letter dated 19 July 2018 from AFSA to Mr Pekar. This letter acknowledges receipt of letters dated '10 July 2018 and 17 August 2018 (sic) received by AFSA on 12 July 2018 and 19 July 2018 respectively'. Mr Pekar acknowledged in cross-examination that he wrote in his own hand on the AFSA letter dated 19 July 2018 that he received that letter on 24 July 2018. I find that the letter referred to as being dated '17 August 2018' by Mr Pekar to AFSA was an error by Mr Pekar and that the letter was most likely sent to AFSA on or about 17 July 2018.

[18] TB page 390 at paragraph [68] of the judgment of His Honour Justice Moshinsky.

[20] Consequential orders made by the Court were that the Trustee be removed from office and a new trustee appointed. This second trustee was also subsequently replaced.

[21] Once a matter or issue between parties has been litigated and decided, it cannot be raised again between the same parties.

[25] Exhibit 5 - Brief to Counsel dated 9 May 2018.

[26] See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[27] See section 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 which states that the Tribunal is not bound the rules of evidence.

[28] See Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263.

[29] Rule 17.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 states: 'A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's instructions where applicable.'

[30] See Rule 3.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 which states: 'A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.'

See also Giannarelli v Wraith (1988) CLR 543.

[31] Regina v Ulcay [2008] 1WLR 1209 at [27]. The learned Judge said, 'The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client 'instructs him to say'.

[32] Saltoon v Lake [1978] 1 NSWLR 52 and Murphy v Legal Services Commissioner [2013] QSC 70.

[34] TB pages 378-391 at [16] and [54].

[35] TB pages 392-397. The quoted passage is contained in paragraph 18 of the judgment.

[36] TB pages 400-406. The quoted passage is contained in paragraph 3 of the judgment.

[37] [2012] VSC 87.