Cooper v Winter

Case [2013] NSWCA 261

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Cooper v Winter [2013] NSWCA 261
Hearing dates:22 March 2013
Decision date: 13 August 2013
Before: McColl JA at [1]
Barrett JA at [2]
Ward JA at [3]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - solicitors' duties to clients and former clients - whether primary judge erred in holding that no solicitor/client retainer and no duty of care or fiduciary duties owed to appellant in relation to transaction in question - whether primary judge erred in holding no breach of duty of care or fiduciary duties and no loss caused as a result of conduct in question
Cases Cited: Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367
Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
Cooper v Winter [2012] NSWSC 161
Davie v Lord Provost Magistrates and Councillors of the City of Edinburgh (1953) SC 34
Easter v Griffith (Supreme Court of New South Wales, Santow J, 17 June 1993, unreported)
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Holborow v Rudder [2002] WASC 265
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McCrohon v Harith [2010] NSWCA 67
Mifsud v Campbell (1991) 21 NSWLR 725
The Ophelia [1916] 2 AC 206
Watkins T/as Watkins Tapsell v De Varda [2003] NSWCA 242
Category:Principal judgment
Parties: Peter Joseph Cooper (Appellant)
Ronald William Winter (First Respondent)
Neill Stewart Williamson (Second Respondent)
Anthony Orazio Brieschetto (Third Respondent)
Representation: Counsel:
T J Boyd with J D Cairn (Appellant)
G Curtin SC (Respondents)
Solicitors:
Herbert Weller (Appellant)
Coliln Biggers & Paisley (Respondents)
File Number(s):CA 12/104578
 Decision under appeal 
Jurisdiction:
9111
Citation:
[2012] NSWSC 161
Date of Decision:
2012-03-07 00:00:00
Before:
Adamson J
File Number(s):
SC 07/265248

Judgment

  1. McCOLL JA: I agree with Ward JA's reasons and the orders her Honour proposes.

  1. BARRETT JA: I have had the advantage of reading in draft the comprehensive judgment prepared by Ward JA. I am of the opinion that, for the reasons her Honour states, the appeal should be dismissed with costs.

  1. WARD JA: This is an appeal from the dismissal by Adamson J of claims brought in the Common Law Division by Mr Peter Cooper against the partners of a firm of solicitors for alleged breaches of duty of care and fiduciary duty arising out of the conduct of one of the partners of that firm, Mr Ronald Winter. For ease of…

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AGLC
Cooper v Winter [2013] NSWCA 261
Case
[2013] NSWCA 261
Decision Date

CaseChat Overview and Summary

The appeal in *Cooper v Winter* concerned allegations of negligence, breach of fiduciary duty, and breach of duty of care brought by the appellant against the respondent solicitors. The dispute arose from a transaction in which the appellant alleged the solicitors owed duties to him, both as a client and a former client, in relation to that transaction. The primary judge had found that no solicitor-client retainer existed and that no duty of care or fiduciary duties were owed to the appellant concerning the transaction.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that no solicitor-client retainer was established, and consequently, whether the primary judge had erred in holding that no duty of care or fiduciary duties were owed to the appellant. Further, the court was asked to consider whether the primary judge had erred in finding that, even if such duties were owed, there was no breach of those duties, and no loss had been caused to the appellant as a result of the solicitors' conduct.

The Court of Appeal, comprising McColl, Barrett and Ward JJA, dismissed the appeal. Their Honours upheld the primary judge's findings that no solicitor-client retainer existed and that, accordingly, no duty of care or fiduciary duties were owed to the appellant in relation to the transaction in question. The court found no error in the primary judge's conclusion that the appellant had not suffered any loss as a result of the respondent's conduct. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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