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Firm unsuccessfully sued for $300k over ‘loss of enjoyment’
After losing a Federal Circuit Court hearing, a woman attempted to sue a Melbourne boutique firm for $1,250,000, part of which included a claim for damages over “loss of enjoyment, stress and depression”.
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The Victorian Civil and Administrative Tribunal (VCAT) tossed a negligence claim brought against an Essendon-based boutique firm, with senior member Jonathan Smithers finding it was unreasonable for its former client to lay blame “at the feet of the firm”.
The firm was retained two years after the Federal Circuit Court – now the Federal Circuit and Family Court of Australia – made final orders in the woman’s substantive proceedings with her ex-husband.
In March 2021, when the former client failed to cooperate with the orders by selling the family home, the husband filed an enforcement action to sell the home himself. The husband was successful.
Shortly afterwards, the woman alleged the firm was negligent, had not provided her due care and skill, and its services were not provided in a reasonable time. The firm denied all claims.
She sued for a total of $1,255,421, with $450,000 for the loss from the property sale, $200,000 for loss of potential income due to stress, and $300,000 for loss of enjoyment, stress and depression.
Smithers said it was clear from the way she conducted the case that she felt she was the victim of “malicious action” by her ex-husband and “that she has been buffeted by a number of adverse events”.
Ultimately, Smithers found the firm carried out the work it was retained to do as best as it could “in the difficult circumstances”, and any “errors or shortfalls in the service provided were not such as to rise to the level of negligence or breach of statutory duties”.
As for the loss of enjoyment sum, Smithers said the tribunal book does not contain relevant material to claim damages for loss for psychiatric or psychological injury under the Wrongs Act.
The effect of the act meant a person was not able to recover these damages without a significant injury certificate from an approved medical practitioner, but the former client never obtained one.
Further, personal injury claims is limited to $10,000, Smithers said.
VCAT ordered the woman to pay the firm $13,223.80, being the total sum of three invoices.
The case: BEP v Schembri & Co Lawyers (Legal Practice) [2025] VCAT 421 (13 May 2025)
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at: