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Cooper v Winter

Cooper v Winter

Case [2012] NSWSC 161 7 March 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Cooper v Winter [2012] NSWSC 161
Hearing dates: 27 February 2012 - 1 March 2012
Decision date: 07 March 2012
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Judgment for the defendants.
(2) Order the plaintiff to pay the defendants' costs, unless within seven days any application is made for a different costs order.

Catchwords: CONTRACT - retainer - express or implied retainer - whether the defendant solicitor was retained by the plaintiff
TORT - negligence - duty of care - duty of a solicitor - duty of a solicitor owed to a former client - duty of a solicitor in the absence of a retainer
EQUITY AND TRUSTS - establishment of a trust - requirement of certainty of objects - lack of certainty as to terms of the trust
DAMAGES - loss of chance - causation
Legislation Cited: Limitation Act 1969
Cases Cited: Fox v Percy [2003] HCA 22; 214 CLR 118
Hendriks v McGeoch [2008] NSWCA 53
Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561
Kyriakou v Hughes (1984) Aust Torts Reports 80-646
Mutual Life & Citizens Assurance Co Ltd v Evatt [1968] HCA 74; 122 CLR 556
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844
Ramsay v Watson [1961] HCA 65; 108 CLR 642
San Sebastian Pty Ltd v The Minister [1986] HCA 68; 62 CLR 340
Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332
Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1
Thomas v Adam [2000] NSWCA 127
Watson v Foxman (1995) 49 NSWLR 315
White v Shortall [2006] NSWSC 1379; 68 NSWLR 650
Category: Principal judgment
Parties: Peter Joseph Cooper - Plaintiff
Ronald William Winter - First defendant
Neil Stewart Williamson - Second defendant
Anthony Orazio Brischetto - Third defendant
Representation: T Boyd/J Cairn - Plaintiff
G Curtin SC/M Neville - Defendants
Herbert Weller Solicitor - Plaintiff
Colin Biggers & Paisley - Defendants

File Number(s): 2007/00265248

Judgment

The plaintiff, Mr Cooper, sues his former solicitors for damages or equitable compensation in respect of loss which the plaintiff alleges he suffered as a result of the negligence or breach of duty of Mr Winter, the first defendant.

The plaintiff's case is that Mr Winter was retained by him as his solicitor and that he failed to act in his best interests and continued to act for other parties notwithstanding that there was a conflict between the plaintiff's interests and the interests of the other parties. The plaintiff also alleges that Mr Winter gave him certain assurances which caused him to act in particular ways and that the plaintiff lost various opportunities to make money as a result.

The defendants defend the proceedings on the basis that although Mr Winter did act for the plaintiff, he was retained by the plaintiff only for the following discrete matters:

(1) acting for the plaintiff and his then wife, Kim…

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 Cooper v Winter

Details

AGLC: Cooper v Winter [2012] NSWSC 161
Case: [2012] NSWSC 161
Decision Date: 07 March 2012

CaseChat Overview and Summary

The case of Cooper v Winter involved a dispute between the plaintiff, Cooper, and the defendant, Winter, a solicitor. Cooper sought to recover damages for loss of a chance to receive a benefit from a trust, alleging that Winter, who had previously acted for Cooper in the establishment of the trust, was negligent in failing to properly advise him regarding the trust's terms. Cooper claimed that Winter owed him a duty of care, despite the absence of an express or implied retainer. The matter was heard in the Supreme Court of Victoria.

The central legal issues in the case involved the existence of an express or implied retainer between Cooper and Winter, the duty of care owed by a solicitor to a former client in the absence of a retainer, and the certainty of objects required to establish a trust. Additionally, the court considered whether the failure to advise Cooper properly about the trust terms constituted negligence and whether the loss of a chance to benefit from the trust could give rise to damages.

The court found that there was no express or implied retainer between Cooper and Winter. In the absence of a retainer, the court held that a solicitor does not owe a duty of care to a former client unless there is an assumption of responsibility. The court found that Winter did not assume responsibility for advising Cooper about the trust terms. The court also found that the trust in question was not validly established due to uncertainty in its terms, precluding any entitlement to benefit from it. As a result, Cooper's claim for damages for the loss of a chance to benefit from the trust failed.

The court ordered that Cooper's claim be dismissed, with Cooper to pay Winter's costs of the proceedings. The court found that Cooper had failed to establish a duty of care, negligence, or causation, and therefore had no basis for his claim for damages.

Orders