Coshott v Barry

Case [2009] NSWCA 34


NEW SOUTH WALES COURT OF APPEAL

CITATION:
Coshott v Barry [2009] NSWCA 34

FILE NUMBER(S):
40766/07

HEARING DATE(S):
5 & 6 February 2009

JUDGMENT DATE:
9 March 2009

PARTIES:
Ljiljana Coshott (First Appellant)
Robert Gilbert Coshott (Second Appellant)
Stephen Michael Barry ( Respondent)

JUDGMENT OF:
Beazley JA Ipp JA Campbell JA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
20114/04

LOWER COURT JUDICIAL OFFICER:
James J

LOWER COURT DATE OF DECISION:
11 October 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 1094

COUNSEL:
R G Coshott (Appellants)
S A Kerr/P Kulevski (Respondent)

SOLICITORS:
N/A (Appellants)
Yeldham Price O'Brien Lusk (Respondent)

CATCHWORDS:
PROFESSIONS AND TRADES - lawyers - other matters - whether solicitor negligent in handling of clients' case - whether clients exercised control over conduct of proceedings - whether advocate's immunity applies - no point of principal
TORTS - negligence - essentials of action for negligence - damages - loss of a commercial opportunity

LEGISLATION CITED:
Civil Liability Act 2002
Ritchie's Uniform Civil Procedure NSW

CATEGORY:
Principal judgment

CASES CITED:
Carantinos v Magafas [2008] NSWCA 304
Commonwealth Bank of Australia v Hadfield [2001] NSWCA 440; (2001) 53 NSWLR 614
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Legione v Hately [1983] HCA 11; (1983) 152 CLR 406
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Partington v Reynolds (1858) 4 Drew 253
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40766/07

BEAZLEY JA
IPP JA
CAMPBELL JA

Monday, 9 March 2009

Ljiljana COSHOTT and Another v Stephen Michael BARRY

Judgment

The appellants’ seven claims against Mr Barry

  1. BEAZLEY JA:  I agree with Ipp JA.

  2. IPP JA:  Until 26 August 2003, when his retainer was terminated, Mr Barry (the respondent) acted as solicitor for Mr and Mrs Coshott (the appellants) in various litigious matters. 

  3. After the retainer was terminated, the appellants brought seven claims against Mr Barry.  Six of the claims were for damages for professional negligence and one was a claim based on promissory estoppel. 

  4. The professional negligence claims arose out of four actions brought by the appellants against various different parties. Mr Barry acted as the appellants’ solicitor in these actions.  The appellants alleged that Mr Barry had been negligent in conducting that litigation and, in consequence, they had suffered damages.

  5. The claim based on promissory estoppel concerns legal costs claimed by Mr Barry from the appellants. The appellants contended that Mr Barry was estopped from charging them otherwise than in accordance with a representation he allegedly made to them.

  6. The parties identified the appellants’ seven claims against Mr Barry by reference to the appellants’ respective opponents in each of the four actions.  The first action involved various claims by the appellants against Citibank Limited and gave rise to a claim by the appellants against Mr Barry referred to as the “Citibank…

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AGLC
Coshott v Barry [2009] NSWCA 34
Case
[2009] NSWCA 34
Decision Date

CaseChat Overview and Summary

The parties to this appeal were Coshott (the appellant) and Barry (the respondent). The dispute concerned allegations of negligence against a solicitor arising from the handling of the clients' case. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the solicitor had been negligent in the conduct of the clients' case, whether the clients had exercised control over the proceedings, and whether the advocate's immunity applied to the solicitor's actions. The court also considered the essential elements of an action for negligence and the recoverability of damages for loss of a commercial opportunity.

The Court of Appeal upheld the decision of the trial judge, finding that the solicitor had not erred in the handling of the Vardas 3 Claim. The court's reasoning, as articulated by Ipp JA and agreed with by Campbell JA and Beazley JA, implicitly determined that the solicitor's conduct did not fall below the required standard of care and that the clients had not exercised sufficient control to negate the solicitor's professional responsibility. The principle of advocate's immunity was also considered in the context of the solicitor's actions.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, James J did not err in the finding he made in this regard and the appeal in regard to the Vardas 3 Claim must be dismissed.Conclusion Accordingly, the appeal must be dismissed with costs. CAMPBELL JA: I agree with Ipp JA.**********

Ratio Decidendi

Legal Principle Established

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