Legal Research
Cases
Coshott v Barry

Coshott v Barry

Case [2007] NSWSC 1094 11 October 2007

Professional Negligence

Duty of Care

Causation

Admissibility of Evidence

Civil Litigation & Procedure

Professional Negligence

No judgment structure available for this case.

Type to search within this case.

CITATION: Coshott v Barry [2007] NSWSC 1094

HEARING DATE(S): 12-15/06/07, 03-05/09/07

JUDGMENT DATE :
11 October 2007

JUDGMENT OF: James J

DECISION: Verdict for the defendant

CATCHWORDS: Professional negligence - solicitors - advocate's immunity - omission to advise - whether plaintiff would have taken advice, if given

LEGISLATION CITED: Bankruptcy Act
Evidence Act
Legal Aid Act
Legal Profession Act
Limitation Act

CASES CITED: Berry v Kanakis [2002] NSWCA 68
Commonwealth Bank of Australia v Hadfield [2001] NSWCA 440
D’Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1
Giannarelli v Wraith (1987-1988) 165 CLR 543
Keefe v Marks (1989) 16 NSWLR 713
Legione v Hateley (1982-1983) 152 CLR 406
Lenin v Coshott [2007] NSWSC 630
Midland Bank Trust Co Limited v Hett Stubbs & Kemp [1979] Ch 384
Ryan v Hansen (2000) 49 NSWLR 184
Sellars v Adelaide Petroleum NL (1992-1994) 179 CLR 332
Wilson v Carter [2005] NSWSC 1351

PARTIES: Lijljana Coshott & Anor v Stephen Barry

FILE NUMBER(S): SC 20114/04

COUNSEL: Robert Coshott - First and Second Plaintiffs
SA Kerr / P Horvath - Defendant

SOLICITORS: Lijljana and Robert Coshott - Plaintiffs
Yeldham Price O'Brien Lusk Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY 11 OCTOBER 2007

20114/04 LIJLJANA COSHOTT & Anor v STEPHEN BARRY
JUDGMENT

1 HIS HONOUR: These proceedings were brought by the plaintiffs Lijljana Coshott and Robert Gilbert Coshott, her husband, against the defendant Stephen Michael Barry, who acted as solicitor for the plaintiffs from about mid 2001 until his retainer was terminated on 26 August 2003. Mr Barry practiced as a solicitor under the name of CKB Partners.

2 The plaintiffs made five claims against the defendant, four claims for alleged professional negligence by the defendant and one claim based on estoppel. One of the claims for professional negligence, which relates to a solicitor named George Vardas, contains a number of separate claims.

3 The proceedings were conducted for the plaintiffs by Mr Coshott, without any legal representation, and Mr Coshott appeared in person at the hearing.

4 At the commencement of the hearing Mr Coshott made an application for leave to appear for his wife, as well as himself. This application was opposed by counsel for the defendant. At my request Mrs Coshott attended the Court. I asked Mrs Coshott some questions and she confirmed to me that she wished her husband to appear for her. I then granted Mr Coshott leave to appear for his wife, as well as himself. Mrs Coshott left the courtroom and did not subsequently attend the hearing.

5 I am satisfied that in these proceedings, as well as in the matters giving rise to the claims which were brought in these proceedings, Mrs Coshott, although nominally a party, took no active part and relied entirely on her husband.

6 Mr Coshott was formerly a solicitor and practiced as a solicitor for many years. He is an experienced litigant, having been a party in many court cases,…

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 Coshott v Barry

Details

AGLC: Coshott v Barry [2007] NSWSC 1094
Case: [2007] NSWSC 1094
Decision Date: 11 October 2007

CaseChat Overview and Summary

The plaintiff, Mr Coshott, brought a claim against the defendant, Mr Barry, a solicitor, for professional negligence. The dispute centred around the defendant's failure to advise the plaintiff about a legal matter, which resulted in the plaintiff suffering a loss. The case was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant's negligence in omitting to provide certain advice led to the plaintiff's financial loss. The defendant, in turn, argued that the plaintiff would not have followed the advice had it been given, thereby negating any potential negligence on the part of the defendant.

The central legal issues that the court had to determine were whether the defendant's omission constituted professional negligence and, if so, whether the plaintiff would have acted on the advice if it had been provided. The court was required to assess the standard of care expected of a solicitor in such circumstances and to evaluate the causal link between the defendant's failure to advise and the plaintiff's loss. The court also had to consider the principle of advocate's immunity, which generally protects legal practitioners from liability for the consequences of advice given in the course of advocacy.

The court found that the defendant did owe a duty of care to the plaintiff and that this duty was breached by the omission to advise. However, the court held that the plaintiff would not have acted on the advice if it had been given, which was a significant factor in determining the outcome. As a result, the court ruled that the defendant was not liable for the plaintiff's loss. The court emphasised that the principle of advocate's immunity applied in this context, protecting the defendant from liability for the consequences of the advice that was not given. Consequently, the plaintiff's claim was dismissed.

Orders