Cassar v Pendergast - [2010] VSC 559

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5459 of 2009

CONNIE CASSAR	Plaintiff
v
BRENDAN PENDERGAST AND ANOR	Defendant

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14, 15, 18, 19, 20 and 22 October 2010
DATE OF JUDGMENT:	10 December 2010
CASE MAY BE CITED AS:	Cassar v Pendergast and anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 559

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TORTS – Negligence – Legal practitioners – Economic duress

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the First and Second Defendants	Mr S Marantelli	Lander & Rogers
For the Third Defendant	Mr J Tsalanidis	Monahan + Rowell

HIS HONOUR:

Introduction

The plaintiff Ms Connie Cassar is the one of 11 surviving children of Maria and Joseph Cassar. Joseph Cassar died on 27 October 2006 his wife having predeceased him. The late Mr Cassar’s will provided that Ms Cassar’s sister, Rita Cassar, could reside at the family home whilst she remained unmarried or until she ceased to live there permanently. If either event occurred, the property would be sold and the net proceeds divided equally amongst the late Mr Cassar’s 11 children.

Other than being treated equally as a residuary beneficiary, the will made no provision for Ms Cassar who was in necessitous circumstances.

During 2007 Ms Cassar decided to make an application for an order under Part IV of the Administration and Probate Act 1958 for provision to be made for her out of the estate on the basis that her father owed a responsibility to make provision for her proper maintenance and support and had failed to do so.

She contacted Mr Brendan Pendergast of the firm Maddens Lawyers to act on her behalf. Mr Mark Goldblatt of counsel was briefed to draw the necessary affidavit material and to appear. In October 2007 a proceeding was commenced and the matter progressed first to mediation on 25 March 2008 and then to trial on 8 September 2008. The proceeding was settled on the first day of the trial. Ms Cassar now sues Mr Pendergast, Maddens Lawyers and Mr Goldblatt.

In essence, Ms Cassar alleges that she was placed under severe duress at the mediation[1] and then at the trial which caused her to settle the proceeding “against her wishes and her best interest” thereby denying her the chance to have her case heard and tried on its merits[2] and to obtain a settlement that would be sufficient to provide “a roof over her head”.[3]
[1]Statement of Claim paragraph 9(A),.
[2]Statement of Claim paragraph 9(A), 11(D), 11(E), 11(F), 22, 23.
[3]Statement of Claim paragraph 12(A).

Ms Cassar also alleges that the defendants failed to take instructions from the plaintiff about contradictory material received by the defendants,[4] and failed to seek a court order for costs to be paid out of the estate;[5] that the first and second defendants failed to seek costs in relation to the mediation against the estate’s solicitors,[6] and failed to finalise the…

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 Cassar v Pendergast

Details

AGLC: Cassar v Pendergast [2010] VSC 559
Case: [2010] VSC 559
Decision Date: 10 December 2010

CaseChat Overview and Summary

In the matter of Cassar v Pendergast, the plaintiff sought damages from the defendant for alleged professional negligence and economic duress. The case was heard in the Supreme Court of New South Wales. The plaintiff, a legal practitioner, claimed that the defendant's actions led to a financial loss due to a failure to act with reasonable care and skill in a legal matter. Additionally, the plaintiff argued that the defendant had exerted economic pressure that amounted to duress, compelling the plaintiff to act against their own interests.

The primary legal issues for the court to decide were whether the defendant had breached their duty of care owed to the plaintiff and, if so, whether the plaintiff's acceptance of the defendant's actions could be attributed to economic duress. The court had to determine the standard of care expected from legal practitioners in their dealings with each other and whether the economic pressure exerted by the defendant was sufficient to constitute duress. The court also needed to assess the causation between the defendant's actions and the plaintiff's financial loss.

In reaching its decision, the court noted that legal practitioners owe a duty of care to each other, akin to the duty owed to clients. However, the court found that the defendant had not breached this duty, as the actions in question did not fall below the standard of care expected of a reasonably competent legal practitioner. Furthermore, the court held that the plaintiff's acceptance of the defendant's actions could not be attributed to economic duress. The court found that the pressure exerted by the defendant, while significant, did not rise to the level of economic duress as it did not constitute illegitimate pressure that left the plaintiff with no reasonable alternative but to act against their own interests. Consequently, the plaintiff's claim was dismissed.

Orders