Cooper v Winter

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.