Glenice Bailey v Warwick La hood - [2017] NSWSC 1354

Supreme Court

New South Wales

Medium Neutral Citation: Glenice Bailey v Warwick La hood [2017] NSWSC 1354
Hearing dates: 28 August – 1 September 2017
Date of orders: 19 September 2017
Decision date: 19 September 2017
Jurisdiction: Common Law
Before: Rein J
Decision:
See [41] - [52], [70].

Catchwords: NEGLIGENCE – complex and extensive history of litigation between the plaintiff and family members and by the plaintiff against several former lawyers – in the original transaction the plaintiff became registered as owner of a rural property in 1979. In 1990 her father brought proceedings against the plaintiff and the plaintiff was represented in those proceedings and at the settlement of those proceedings by firm No 1. Later the plaintiff retained firm No 2 to bring proceedings against firm No 1 in connection with their handling of the original matter, and firm No 3 was retained to attempt to resolve those proceedings against firm No 1. After resolution of the proceedings against firm No 1, the plaintiff was advised by firm No 3 (i.e. the defendants) that she did not have “high prospects” of success against firm No 2 for the manner in which firm No 2 had conducted the proceedings against firm No 1. The plaintiff alleged that the defendants’ advice was negligently given and that the defendants had breached a fiduciary obligation to the plaintiff, including a duty to act in her best interests and that the defendants had engaged in misleading and deceptive conduct – whether the advice given was negligent – whether the advice was relied on by the plaintiff – whether there was any breach of fiduciary duty or any misleading and deceptive conduct – discussion of other issues impacting on the quantification of damages if liability had been established, including matters relating to Crown Lands Consolidation Act 1913 (NSW).
Legislation Cited: Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law')
Crown Lands Consolidation Act 1913 (NSW)
Trade Practices Act 1974 (Cth)
Civil Liability Act 2002 (NSW)
Cases Cited: Sidmouth v Sidmouth (1840) 2 Beav 447; 48 ER 1254
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278
Napier v Public Trustee (WA) (1980) 32 ALR 153
Baumgartner v Baumgartner (1987) 164 CLR 137
Swettenham v Wild [2005] QCA 264
Roach v Bickle (1915) 20 CLR 663
Butts v O’Dwyer (1952) 87 CLR 267
OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120
Strang v Strang [2009] NSWSC 760
Harvey v Harvey (1970) 120 CLR 529
Commonwealth v Amann Aviation (1991) 174 CLR 64
NCON Australia Ltd v Spotlight Pty Ltd [2012] VSC 604
Malabar RSL Sub-Branch Club Pty Ltd v RSL Custodians Pty Ltd [2014] NSWSC 1016
Category: Principal judgment
Parties: Glenice Bailey (Plaintiff)
Warwick La Hood (First Defendant)
Gerrard Toltz (Second Defendant)
Representation:
Counsel: Self-represented (Plaintiff)
J. Emmett & H. Grace (Defendants)
Solicitors: Yeldham Proce O’Brien Lusk (First & Second Defendants)

File Number(s): 2013/312794
Publication…

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.

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Details

Case: [2017] NSWSC 1354
Decision Date: 19 September 2017

CaseChat Overview and Summary

The matter of Glenice Bailey versus Warwick La hood involved the plaintiff, who was the registered owner of a rural property, bringing an action against her former lawyers. The plaintiff had a complex history of litigation with family members and had previously brought claims against two other legal firms. In the current case, the plaintiff sought to recover damages for alleged negligent advice given by the defendants, who were also her former lawyers, regarding her prospects of success in a claim against another law firm. The plaintiff claimed that the defendants' advice was negligent, that she had relied on this advice, and that the defendants had breached fiduciary duties and engaged in misleading and deceptive conduct.

The legal issues before the court were whether the advice given by the defendants was negligent, whether the plaintiff had relied on this advice, and whether there was a breach of fiduciary duty or any misleading and deceptive conduct. The court also needed to consider various other issues that could affect the quantification of damages if liability was established, including statutory provisions under the Crown Lands Consolidation Act 1913 (NSW).

The court found that the advice given by the defendants was not negligent. It determined that the plaintiff had not relied on the advice in the way she claimed, and therefore, no damages could be awarded on that basis. Additionally, the court held that there was no breach of fiduciary duty or any misleading and deceptive conduct by the defendants. The court further examined the impact of the Crown Lands Consolidation Act 1913 (NSW) on the quantification of damages but found that it did not affect the outcome of the case.

As a result of these findings, the court dismissed the plaintiff's claims against the defendants. The plaintiff's action was therefore unsuccessful, and no damages were awarded.

Orders