Gandini v Paterson and Dowding - [2012] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GANDINI -v- PATERSON & DOWDING [2012] WADC 13

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 25 JANUARY 2012

DELIVERED : 14 FEBRUARY 2012

FILE NO/S: CIV 2648 of 2010

BETWEEN: LEONARD GANDINI
Plaintiff
AND
PATERSON & DOWDING
Defendant

Catchwords:

Practice and procedure - Application to strike out - Solicitor's duty of care to third party

Legislation:

Nil

Result:

Statement of claim struck out

Representation:

Counsel:

Plaintiff: Not applicable
Defendant: Mr S F Popperwell

Solicitors:

Plaintiff: In person
Defendant: Pynt & Partners

Case(s) referred to in judgment(s):

Hardie Finance Corporation Pty Ltd v Ahern [No. 3] [2010] WASC 403
Hawkins v Clayton (1988) 164 CLR 539
Hill v Van Erp (1997) 188 CLR 159
Tobin v Dodd [2004] WASCA 288
White v Jones [1995] 2 AC 207

DEPUTY REGISTRAR HEWITT: In this matter the defendant has applied to strike out the plaintiff's statement of claim. The basis of that application is that the facts and circumstances pleaded in this statement of claim are incapable of giving rise to the duty care relied upon by the plaintiff for the relief sought.
By way of a brief overview the plaintiff was in 2004 embroiled in proceedings in the Family Court of Western Australia between himself and his former wife Colleen Marie Gandini. It is relevantly pleaded in par 2 and par 3 in the statement of claim as follows:
In or about March 2004, the Plaintiff's wife, Colleen Marie Gandini ('Mrs Gandini') instructed and retained Paterson & Dowding to advise her and to act as her solicitors in proceedings in the Family Court of Western Australia ('Family Court') between her and the Plaintiff involving property settlement ('the Gandini Proceedings') and on all matters on which she might require legal advice incidental thereto ('the Gandini Retainer').
At all material times, Paterson & Dowding owed Mrs Gandini and the Plaintiff a duty to exercise due care, skill and diligence expected of a reasonably competent solicitor in carrying out the Gandini Retainer.
It is further pleaded in par 9 and par 10 as follows:
In March 2005, Mrs Gandini engaged Paterson & Dowding to provide her with legal advice, and to act as her solicitors, in relation to the Woolven Proceedings ('the Woolven Retainer').
At all material times, Paterson & Dowding owed Mrs Gandini and the Plaintiff a duty to exercise due care, skill and diligence expected of a reasonably competent solicitor in carrying out the Woolven Retainer.
The circumstances which give rise to the plaintiff's claim arise initially in November 2004 when the plaintiff entered a contract with one Woolven to sell property at and known as 33A Mitchell Street, Ardross. The matters giving rise to the claim concern dealings with that property in the Family Court which are set out in pars 5, 6, 7 and 8 of the statement of claim which are as follows:
5.Between November and December 2004, with the knowledge that the Plaintiff had entered into the Contract with Mr Woolven, Paterson & Dowding:
(i)lodge [sic] a caveat over the Property;
(ii)settled the Gandini Proceedings on terms which involved the Plaintiff transferring the property to Mrs Gandini; and
(iii)gave effect to the settlement of the Gandini Proceedings by signing a minute of consent orders, ('the Minute'); and
(iv)failed to notify Mr [sic] Woolven that notice of the minute of consent orders.
6.On 9 December 2004, the Family Court approved the Minute and made orders in terms of the Minute in the Gandini Proceedings ('the Orders').
7.In late February 2005, Mrs Gandini took possession of the property and made improvements to the Property.
8.On 14 March 2005, Mr Woolven applied to the Family Court to remove the Caveat and to set aside the Orders under section 79A(1)(a) of the Family Law Act 1975 ('the Woolven Proceedings').
It is alleged by the plaintiff that as a consequence of the proceedings initiated by Woolven he suffered loss and damage and by virtue of the breach of the duty of care owed to him by the defendant, he is entitled to recover in the present action.
The gist of the defendant's application is that the pleaded basis of the existence of a duty of care in favour of the plaintiff is unsustainable as a matter of law and the statement of claim should be struck out. Again I recap the pleading as it has been formulated. A duty of care is alleged to have arisen in two instances and in each instance it is said to have arisen by virtue of the plaintiff's wife engaging the defendant to act on her behalf in a contested proceedings in the Family Court of Western Australia, firstly in regard to the proceedings between them and secondly, in regard to the proceedings initiated by Woolven.
A number of authorities have been cited to me and it is clear that in certain circumstances a solicitor will owe a duty of care to a party other than the party who retained him. Instances of that duty are to be found in cases such as Hawkins v Clayton (1988) 164 CLR 539 where a solicitor neglected to inform an executor of the existence of a will of a deceased person naming him as the executor as a consequence of which the estate fell into disrepair, White v Jones [1995] 2 AC 207 in which a solicitor failed to prepare an amended will on testators instructions causing the proposed gift to certain beneficiaries to fail and defeating the testamentary intention of his client as also in Hill v Van Erp (1997) 188 CLR 159 where a beneficiary witnessed a will invalidating the gift. A slightly different line of cases have recognised a duty of care which exists by a solicitor where his retainer is intended to not only provide a benefit to his client but also a third party. In an instance of this kind is Tobin v Dodd [2004] WASCA 288, though that case contains a number of different complications including consideration of precisely who retained the solicitor.
In a recent case of Hardie Finance Corporation Pty Ltd v Ahern [No. 3] [2010] WASC 403 Justice Pritchard concluded that the defendant, a solicitor who had negligently instructed a client as to its rights and repossession under a romalpa clause, owed no duty of care to the party from whom repossession was taken nor to those in a contractual relationship with that party who might damaged by the repossession. At [452] Justice Pritchard said:
Although I have found that it was reasonably foreseeable that FC's creditors would suffer financial loss if Mr Ahern negligently provided advice to FC in relation to its conduct of the Repossession, the salient features of this case weigh heavily against the conclusion that any duty of care was owed by Mr Ahern to FC. Prior to the Repossession, Mr Ahern had no actual or constructive knowledge that Pac-Am leased the Premises from HFC. In addition, this is a case where (but for the expiry of the limitation period) a finding of a duty of care to HFC would have given rise to liability to an indeterminate class of plaintiffs. Further, HFC was not vulnerable to incurring loss if Mr Ahern negligently advised FC and that advice was acted upon by FC, and Mr Ahern did not exercise control in respect of any of HFC's rights, interests or expectations which might be affected if FC acted on his advice. At the same time, this is a case where the imposition of a duty of care would be inconsistent with Mr Ahern's duty to FC. All of the salient features of the case point to the conclusion that the relationship between Mr Ahern and HFC was not such as to warrant the imposition of a duty of care. Accordingly, in my view, Mr Ahern was no subject to a duty of care not to cause economic loss to HFC.
None of the cases relied upon by the plaintiff even come close to establishing the duty of care which he claims existed and was owing by the defendants to him. To once again to recap, the pleading alleges that by the plaintiff's wife retaining the defendant to represent her in proceedings against the plaintiff there was created a duty of care to the plaintiff in those solicitors to perform their retainer with due care, skill and diligence. Likewise it is alleged that in retaining the defendant to act in the Woolven action there was likewise created a duty to the plaintiff to exercise due care, skill and diligence.
I can see no basis upon which such a duty could possibly exist. In proceedings of the kind which have been outlined in the statement of claim, the interests of Mrs Gandini and the plaintiff were not coincident. It was not intended by her retainer of the defendant that Mr Gandini should benefit, quite the opposite and it appears to me that it would be impossible for the defendant to properly carry out their duties under the terms of their retainer to Mrs Gandini if indeed the duty of care which is alleged did exist.
I think it is more than a coincidence that in the long history of the evolution of the tort at negligence there appears to be no case in which a duty such as that propounded by this plaintiff has been found to exist.
In my view the statement of claim is such that it sets out a cause of action which has no reasonable prospects of success and as a consequence my order is that it be struck out.