Cappello v Lyons

Case [2023] NSWCA 137


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Cappello v Lyons [2023] NSWCA 137
Hearing dates: 1 June 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Before: Meagher JA at [1]
Simpson AJA at [2]
Griffiths AJA at [85]
Decision:

1. Appeal dismissed.

2. The appellants to pay the respondent’s costs.

Catchwords:

OCCUPATIONS – legal practitioners – professional negligence – advocate’s immunity – whether advocate’s immunity extends to the drafting of pleadings – whether advocate’s immunity applies to omissions by a legal practitioner

Legislation Cited:

District Court Act 1973 (NSW) s 127

Home Building Act 1989 (NSW) s 8A, Sch 1

Civil Liability Act 2002 (NSW) ss 5R, 5S

Cases Cited:

Attard v James Legal Pty Ltd [2010] NSWCA 311

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

Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57

Creative Building Services v Jolene Investments [2013] NSWSC 391

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

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Keefe v Marks (1989) 16 NSWLR 713

Mann v Paterson Construction Pty Ltd (2019) 267 CLR 560; [2019] HCA 32

Rees v Sinclair [1974] 1 NZLR 180

Rondel v Worsley [1969] 1 AC 191

Rosario Cappello v James William Lyons (District Court (NSW), Olsson SC DCJ, 22 August 2022, unrep)

Saif Ali v Sydney Mitchell & Co [1980] AC 198

Category:Principal judgment
Parties: Rosario Cappello (1st Appellant)
Maria Cappello (2nd Appellant)
James William Lyons (Respondent)
Representation:

Counsel:
Self-represented (Appellants)
G Ng (Respondent)

Solicitors:
Moray & Agnew (Respondent)
File Number(s): 2022/274797
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Civil
Date of Decision:
22 August 2022
Before:
Olsson DCJ
File Number(s):
2021/115214

HEADNOTE

[This headnote is not to be read as part of the judgment]

In July 2020 the appellants, Mr Rosario Cappello and Ms Maria Cappello (together, “the Cappellos”), were the plaintiffs and cross-defendants in proceedings in the Equity Division of the Supreme Court. Those proceedings were brought against a building company (“the builder”) and its director, who had conducted substantial renovation works on a property owned by the Cappellos. The proceedings turned, in part, on the entitlement of the builder to recover an amount claimed under a progress claim issued to the Cappellos, which the Cappellos had refused to pay in full. Judgment was entered for the builder and its director.

The entitlement of the builder to issue progress claims arose from cl 15 of the contract between the builder and the Cappellos. Clause 15.4 required any progress claim to include details of the cost of the building works carried out. Clause 15.5 required any progress claim to be accompanied by such invoices, receipts or other documents as may reasonably be expected to support the claim and evidence the cost of the building works being claimed. At…

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AGLC
Cappello v Lyons [2023] NSWCA 137
Case
[2023] NSWCA 137
Decision Date

CaseChat Overview and Summary

In *Cappello v Lyons*, the New South Wales Court of Appeal considered a claim of professional negligence against a solicitor. The dispute arose from the solicitor's alleged failure to properly conduct litigation, specifically concerning the drafting of pleadings.

The central legal issue before the Court was whether the doctrine of advocate's immunity extended to the drafting of pleadings and, more particularly, to omissions by a legal practitioner in that process. The Court had to determine if the solicitor's actions, or inactions, in preparing the pleadings fell within the scope of immunity typically afforded to barristers for work done in court or in preparation for court.

The Court reasoned that advocate's immunity is fundamentally concerned with protecting decisions made by legal practitioners affecting the conduct of a case in court. In this instance, the Court found that there was no evidence that the solicitor had considered and made a decision not to include specific contractual clauses in the pleadings. Consequently, the Court concluded that advocate's immunity was not available as a complete defence to the solicitor for the alleged omissions in the drafting of the pleadings.

Orders

Orders of the court

(emphasis added) affecting the conduct of the case in court. In this case there was no decision by the solicitor. The solicitor did not consider clauses 15.4 and 15.5 of the building contract and the non-compliance therewith by the builder. He did not decide not to include it the pleadings. There was no evidence from the solicitor that he had considered and decided not to include it. It follows that advocate’s immunity was not available to the solicitor as a complete defence to the claim against him.”

59.

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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