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Beri Distributors Pty Ltd v Mossensons Pty Ltd

Beri Distributors Pty Ltd v Mossensons Pty Ltd

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Case Copied 29 March 2022 56 min read

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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…

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.

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Details

Case: [2022] WADC 30
Decision Date: 29 MARCH 2022

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