Coshott v Barry

[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…