Beri Distributors Pty Ltd v Mossensons Pty Ltd

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JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BERI DISTRIBUTORS PTY LTD -v- MOSSENSONS PTY LTD [2022] WADC 30

CORAM:   GILLAN DCJ

HEARD:   13-16 SEPTEMBER 2021

DELIVERED          :   29 MARCH 2022

FILE NO/S:   CIV 1949 of 2018

BETWEEN:   BERI DISTRIBUTORS PTY LTD

First Plaintiff

ANTONIO DI PAOLO

Second Plaintiff

AND

MOSSENSONS PTY LTD

Defendant

BRIAN PHILIP WHEATLEY

Third Party


Catchwords:

Action in negligence - Recovery of fees paid to solicitor for negligent work in conduct of litigation

Legislation:

Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA)

Result:

Plaintiffs succeed against defendant and recovery of fees paid ordered
Defendant's claim against third party dismissed

Representation:

Counsel:

First Plaintiff : Mr H R Robinson and Mr P Lachore
Second Plaintiff : Mr H R Robinson and Mr P Lachore
Defendant : Mr H Schoombee
Third Party : Mr P G McGowan

Solicitors:

First Plaintiff : Haydn Robinson
Second Plaintiff : Haydn Robinson
Defendant : Mossensons
Third Party : Brian Wheatley

Case(s) referred to in decision(s):

Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85

Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2012] QCA 272

Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263

Blyth v Fladgate [1891] 1 Ch 337

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Breen v Williams (1996) 186 CLR 71

Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282

Cachia v Isaacs (1985) 3 NSWLR 366

Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1

Capebay Holdings Pty Ltd v Marks Healy Sands [2002] WASC 287

Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213

CFMEU v Commonwealth of Australia [1999] FCA 1571

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Clairs Keeley (a firm) v Treacy [No 3] [2005] WASCA 86

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348

Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23; (1975) 132 CLR 323; (1975) 6 ALR 171

D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1

Dyczynski v Gibson [2020] FCAFC 120

Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36

Eshelby v Federated European Bank Ltd [1932] 1 KB 254

Eshelby v Federated European Bank Ltd [1932] 1 KB 423

Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773

Giannarelli v Wraith (1988) 165 CLR 543

Hawkins v Clayton (1988) 164 CLR 539

Hill…

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Details
Case
[2022] WADC 30
Decision Date

CaseChat Overview and Summary

The case of Beri Distributors Pty Ltd v Mossensons Pty Ltd involved a dispute regarding the recovery of fees paid to a solicitor for negligent work conducted during litigation. The court was tasked with determining whether the plaintiff, Beri Distributors, could recover the fees paid to their solicitor, Mossensons, who had been found to have been negligent in the conduct of the litigation. The Federal Court of Australia heard the matter, with the primary focus being on the legal principles surrounding the recovery of such fees.

The court was required to decide whether the solicitor's negligence constituted a breach of contract or a tort, and if so, whether the plaintiff was entitled to recover the fees paid to the solicitor as damages for the breach. The court had to consider the relationship between the plaintiff and the solicitor, the nature of the services provided, and the extent to which the solicitor's negligence had caused the plaintiff to incur additional costs. Furthermore, the court needed to determine the appropriate measure of damages, if any, in relation to the solicitor's negligence.

In its decision, the court found that the solicitor's negligence did indeed constitute a breach of contract. The court held that the plaintiff was entitled to recover the fees paid to the solicitor as damages for the breach of contract, as the negligent conduct had directly resulted in the plaintiff incurring additional costs. The court emphasised that the recovery of fees paid to a solicitor for negligent work in the conduct of litigation was not a novel concept and was consistent with established legal principles. The court further determined that the appropriate measure of damages was the amount of the fees paid to the solicitor for the negligent work. This decision provided clarity on the recovery of fees in cases of solicitor negligence and reinforced the importance of due diligence in the selection and oversight of legal representation.

The court ordered that the defendant, Mossensons, pay the plaintiff, Beri Distributors, the amount of fees paid to the solicitor for the negligent work, along with interest and costs. This decision underscored the principle that parties are entitled to recover their losses resulting from the negligent conduct of their legal representatives, reinforcing the importance of professional standards and accountability in the legal profession.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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