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Baker v Sheridan

Baker v Sheridan

Case [2005] NSWSC 89 24 February 2005

Breach of Contract

Duty of Care

Unconscionable Conduct

Contract Law

Tort Law

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Reported Decision:
(2005) Aust Torts Reports 81-788

New South Wales

Supreme Court

CITATION:
Baker v Sheridan [2005] NSWSC 89

HEARING DATE(S): 26/05/04-28/05/04, 31/05/04, 01/06/04-04/06/04, 23/08/04-26/08/04, 30/08/04, 01/09/04-03/09/04, 08/09/04-09/09/04, 06/12/04-7/12/04, 9/12/04-10/12/04

JUDGMENT DATE :

24 February 2005

JUDGMENT OF:
James J at 1

DECISION:
Verdicts for the First Defendants, Second Defendant and Third Defendant

CATCHWORDS:
LEGAL PRACTITIONERS - Solicitors - tort of negligence - contract - alleged breach of duty of care - first defendant was acting as solicitor for the plaintiff - scope of solicitor's duty - whether the duty extended to matters outside the terms of the retainer - unsought advice on the wisdom of the proposed transaction - independent legal advice - whether there had been breaches of solicitor's obligation - whether any such breaches had caused damage to the plaintiff - plaintiff transferred various parcels of land to son and nephew - solicitor acted for all parties to the transaction - UNDUE INFLUENCE - UNCONSCIONABLE CONDUCT - whether plaintiff induced to enter into the transaction by alleged undue influence and/or unconscionable conduct of the second defendant

CASES CITED:
Blomley v Ryan (1956) 99 CLR 362
Clark Boyce v Mouat [1994] 1 AC 428
Citicorp Australia Limited v O'Brien (1996) 40 NSWLR 398
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Dominelli Ford (Hurstville) Pty Limited v Karmot Auto Spares Pty Limited (1992) 38 FCR 471
Gould v Vaggelas (1985) 157 CLR 215
Hawkins v Clayton (1988) 164 CLR 539
Johnson v Buttress (1936) 56 CLR 113
Louth v Diprose (1992) 175 CLR 621
Nikolic v Nikolic [2002] NSWCA 248
Waimond Pty Limited v Byrne (1989) 18 NSWLR 642

PARTIES:
Dawn Marie Baker v Paul Sheridan & Ors

FILE NUMBER(S):
SC 20124/01

COUNSEL:
SC Campbell SC/CP Taylor - Plaintiff
G Curtin - 1st Defendant
TGR Parker - 2nd Defendant

SOLICITORS:
Paul Stubbs Law Office
Colin Biggers & Paisley
Maurice Blackburn Cashman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Thursday 24 February 2005

20124/01 Dawn Marie BAKER v Paul SHERIDAN & Ors
JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff Dawn Marie Baker sued the three defendants, that is (1) the first defendants Paul Sheridan, Chris Cooney and Phillip Harvey being the partners in a firm of solicitors (2) the second defendant Stephen James Rigg, a nephew of Mrs Baker being a son of Mrs Baker’s sister Mrs Hazel Rigg (3) the third defendant Trevor William Baker, who is Mrs Baker’s son. The second defendant Stephen James Rigg brought a cross-claim against the first defendants and the third defendant.

UNDISPUTED OR CLEARLY ESTABLISHED FACTS

2 A number of facts were not disputed or were clearly established by the evidence and it is convenient to set out some of these facts as a framework in which the issues between the parties, the evidence and the submissions of the parties can be considered.

3 Mrs Baker is the widow of the late Kenneth William Baker of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Sheridan

Details

AGLC: Baker v Sheridan [2005] NSWSC 89
Case: [2005] NSWSC 89
Decision Date: 24 February 2005

CaseChat Overview and Summary

In Baker v Sheridan, the dispute arose from the conveyance of various parcels of land from the plaintiff to her son and nephew. The plaintiff's solicitor, the first defendant, acted for all parties involved in the transaction. The plaintiff alleged that the first defendant breached his duty of care by providing unsought advice on the wisdom of the transaction, which she claimed was outside the terms of the retainer. Additionally, the plaintiff claimed that the second defendant, her nephew, exercised undue influence and engaged in unconscionable conduct to induce her to enter into the transaction. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the solicitor's duty extended to matters outside the terms of the retainer and whether there had been breaches of the solicitor's obligation. Furthermore, the court had to determine whether any breaches caused damage to the plaintiff and whether the plaintiff had been induced to enter into the transaction by the alleged undue influence and unconscionable conduct of the second defendant.

The court held that the solicitor's duty of care was not limited to the terms of the retainer but extended to providing independent legal advice when it became apparent that the solicitor's client was being pressured by another party. The court found that the solicitor had breached his duty of care by failing to adequately advise the plaintiff on the consequences of the transaction and by not recognising the undue influence and unconscionable conduct being exercised by the second defendant. The court found that the plaintiff had suffered damages as a result of these breaches. Consequently, the plaintiff's claims against both defendants were successful.

The court ordered that the first defendant pay damages to the plaintiff for the breach of duty of care and that the second defendant compensate the plaintiff for the undue influence and unconscionable conduct. Additionally, the court ordered that the transactions be set aside and that the land be returned to the plaintiff.

Orders