Keith Rogers v Richard NIven

[2009] NSWDC 344

CITATION:	Keith Rogers v Richard NIven & Ors [2009] NSWDC 344
HEARING DATE(S):	26 October 2009 - 29 October 2009
JUDGMENT DATE:	18 December 2009
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraph 105, 115 and 118 of Judgment.
CATCHWORDS:	Professional negligence action against Solicitor and Barrister - Failure to properly advise how to bring and prosecute a claim under the Property (Relationships) Act 1984 - Whether defence of advocates immunity could be relied on - Recovery of Wasted costs - Consideration of application of s 11 of Civil Liability Act 2002 to claim for vexation and distress - Whether such damages recoverable for breach of contract
LEGISLATION CITED:	Property (Relationships) Act 1984 Uniform Civil Procedure Rules Civil Liability Act 2002
CASES CITED:	D'orta Ekenaike v Victorian Legal Aid (2005) 223 CLR1 at [43] Paino v Paino (2008) NSW CA 276 Yates Property Corp Pty Limited (in liq) v Bolan (1998) 85 FCR 84 Davy-Chiesman v Davy-Chiesman (1984) 1 ALL ER 321 Orchard v South Eastern Electricity Board (1987) 1 QB 565 Wakim v McNally (2002) 121 FCR 162 Giannarelli v Wraith (1988) 165 CLR 53 Symonds v Vass (2009) 257 ALR 689 Walton T/as Picture Walton & Co v Efato Pty Limited (2008) NSW CA 86 Coshott v Barry (2009 NSW CA 34 Dancor Pty Limited v Pagotto (2008) NSW SC 112 State of NSW v Ibbett (2005) 65 NSW LR 168 at 21-22 Stephanie Young v Insight Vacations Pty Limited (2009) NSW DC 122) Baltic Shipping Company v Dillon (1992-1993 176 CLR 344
PARTIES:	Keith Rogers (Plaintiff) Richard Niven (1st Defendant) John C Carpenter (2nd Defendant) James E Prosser-Fenn (3rd Defendant) Maurice N Edwards (4th Defendant) Michael G T Niven (5th Defendant) Stuart L Niven (6th Defendant) David Day (8th Defendant)
FILE NUMBER(S):	2862/09
COUNSEL:	T Boyd (Plaintiff) G Curtin (1st - 7th Defendants) K Barrett (8th Defendant)

JUDGMENT

1 This is an action brought by the plaintiff, Keith Rogers, for damages for professional negligence. The first seven defendants are the partners in a firm of solicitors who acted for the plaintiff. The particular solicitor who had the conduct of the plaintiff’s case was the 2nd defendant, John Carpenter. For convenience, I will refer to Mr Carpenter in this judgment as the “Solicitor”. The eighth defendant, David Day, is a barrister who was briefed by the Solicitor to act on behalf of the plaintiff. For convenience, I will refer to Mr Day in this judgment as the “Barrister”.

2 The plaintiff is aged 51 years. He has three adult children but is not presently married, having been divorced from his wife about 9 years ago. The plaintiff is employed as a service technician with Canon Inland Technology.

3 In February 2000 the plaintiff was introduced to Jacquelin McLennan at a hotel in Orange. Ms McLennan told the plaintiff she had been in a relationship with Leonardo Casella and that Mr Casella had “conned her” by stealing her chequebook and using her cheques to pay development costs for a property which Mr Casella owned at Lords Place, Orange. At the time of this meeting, the plaintiff was going through the process of his divorce and he said he felt some sympathy for Ms McLennan who was ill and in a bad mental state.

4 Shortly after their first meeting, the plaintiff and Ms McLennan started to go out and about 6 weeks later Ms McLennan moved into the plaintiff’s home at 6 Woodward Street, Orange. The plaintiff said that by this time Ms McLennan had no funds in her account, Mr Casella had departed the scene and Ms McLennan’s bank, National Australia Bank Limited (“NAB”) had taken action against her to recover the substantial indebtedness which had been run up in her name. In this respect, Ms McLennan owned two properties. One, “North West”, was a farm at Carcoar and the other a residential property in Orange at 171 Edward Street. Both these properties were mortgaged to the NAB as security for Ms McLennan’s indebtedness to it.

5 Upon commencement of the relationship, the plaintiff immediately provided assistance to Ms McLennan to mount a claim against the NAB essentially on the basis that much of the large indebtedness in her name was brought about by unauthorised drawings made by Mr Casella on Ms McLennan’s NAB account. Mr Casella was a builder doing work on Ms McLennan’s residence. NAB had provided a facility to Ms McLennan to cover the cost of the building work. The fraud was perpetrated by Mr Casella using Ms McLennan’s chequebook without her authorisation in purported payments for work done on her residence when in fact the funds were used to cover the costs of the other development being carried out by Mr Casella on his own property and for his own benefit.

6 The plaintiff provided significant assistance to Ms McLennan in uncovering the fraud and making representations to the NAB on her behalf. For example, the plaintiff was involved in writing letters to the NAB about the matter and employing a solicitor in Sydney, Andrew Quigley, who was experienced in banker/customer disputes. In addition, the plaintiff was involved in discussions with the NAB case officer, Mr Husking, who had been appointed by the bank to resolve the dispute with Ms McLennan.

7 In November 2000 the plaintiff resigned from his position with Canon as a service technician, primarily to pursue Ms McLennan’s case for her, although the stress from his then as yet unresolved divorce proceedings was also a contributing factor.

8 I accept the plaintiff’s evidence because I have assessed him as a good historian with a good recollection of what occurred. His credibility was not challenged in the witness box. In this respect, to the extent of there being any material inconsistency between the plaintiff’s evidence and that of each of the Solicitor and the Barrister, I prefer the plaintiff’s evidence because I do not consider their recollections were as good. Each of them had to rely on documents to assist in their recollection, whereas the plaintiff’s recollection was accurate without needing to do this. In addition, I was unimpressed with the Solicitor when he gave his evidence. He was deliberately evasive and attempted to create the impression that it was not his fault because the Barrister had been briefed to do everything.

9 In the case of the Barrister, he sought to minimise his involvement. His evidence was that, unless he had been asked a specific question, he was not required to give advice. This was contrary to what he actually did and was a feeble attempt made in the witness box to avoid liability to the plaintiff.

10 The plaintiff’s evidence was that when he resigned from Canon Ms McLennan agreed that she was prepared to pay the plaintiff for his services as her “consultant”. In this respect, the plaintiff contacted the payees of cheques fraudulently drawn by Mr Casella on Ms McLennan’s account to establish receipt of the funds, he examined the NAB statements to identify “fraudulent” cheques and liaised with the solicitor Mr Quigley. The plaintiff had computer skills which he was able to utilise for Ms McLennan’s benefit whereas she had none. In addition, as Ms McLennan was short of funds, the plaintiff made some payments on her behalf for Mr Quigley’s costs. These payments totalled about $7,000. Expenses in the order of about $2,500 incurred by Ms McLennan were also paid by the plaintiff.

11 As a result of the plaintiff making payments to Mr Quigley, he said that he agreed with Ms McLennan that she would pay him $3,000 a month for his consulting services whilst her claim against the NAB remained unresolved. Because McLennan had no money to pay him, the plaintiff accepted that, as a practical matter, he would be remunerated once settlement with the NAB had been effected. In the meantime, he sold his house at 6 Woodward Street, Orange and used the balance proceeds of sale, after discharge of the mortgage on it, to pay for joint food and living expenses. The plaintiff’s evidence was that about $40,000 of his funds were used for these purposes.

12 The plaintiff’s relationship with Ms McLennan initially ceased in October 2002. Shortly beforehand, Ms McLennan achieved a settlement with the NAB, evidenced by the deed of release which is at exhibit A 39. Under that deed, Ms McLennan was released from all debts arising out of what was described as “financial accommodation” provided by NAB to her. As defined, this included a fixed rate short-term loan, a fixed rate owner occupied home loan, a business secured instalment loan and a lease of goods agreement. At the time, the plaintiff’s understanding was that the settlement effected by the deed of release was worth in the order of $550,000. However, the evidence is entirely unclear as to how much, exactly, was owed to NAB, how much of that debt was made up of unauthorised drawings by Mr Casella, how much of it was debt incurred by Ms McLennan herself and whether some additional claims of Ms McLennan were included in the $550,000. Although the mediation position paper (exhibit 8B.37 p 96) sheds a bit of light on the matter, it demonstrates the uncertainty of those factual matters. In any event, achievement of a settlement with NAB was significant for two reasons. First, because the whole of Ms McLennan’s indebtedness to the NAB was discharged and secondly, because the bank also discharged its mortgages over her farm and her residence which thereby became unencumbered.

13 Once settlement occurred, the plaintiff asked Ms McLennan to pay him what she owed in accordance with their arrangement that he would receive $3,000 per month for his consulting work. Ms McLennan refused to pay him anything. It would seem that, by this time, their relationship had deteriorated and that Ms McLennan took a different view about what the plaintiff had contributed to it.

14 Because the plaintiff always expected that he would be paid by Ms McLennan, in early 2003 he consulted the Solicitor (T 21.2). The plaintiff said he gave the solicitor “detailed instructions in relation to my complaint” (exhibit B para 3) and the Solicitor then asked him to go away and summarise what had happened in writing. This evidence is consistent with paragraph 14 of the Solicitor’s Statement (exhibit 1).

15 Shortly thereafter, the plaintiff provided the Solicitor with his letter dated 9 January 2003 (exhibit B annexure A). It included the following information:

“… when she finally settled her claim with the bank she never got any of the money that her solicitors in Sydney had told her she would get. The final settlement was that the debt with the bank of $550,000 would be written off and her deed would be returned to her.

She is now in the process of cleaning up the property at 171 Edwards Street so as to sell it and is asking for $600,000. …”

16 In cross-examination the Solicitor was asked if he had ever made inquiries as to by how much Ms McLennan had been “ripped off” by Mr Casella and he said he did not know and it had never been finally quantified. He said he had made no attempt to quantify it because it “was not part of what was necessary for Mr Rogers’ case” (T 64.44). Although the Solicitor agreed that the amount of the debt forgiven by the NAB was relevant, he conceded he made no inquiries to determine how much of the write-off was actual indebtedness of Ms McLennan and how much of it was the result of the fraud perpetrated on her (T 65.8). In my assessment, the Solicitor never turned his mind to this.

17 The plaintiff saw the Solicitor on 2 April 2003 for further advice about his claim against Ms McLennan. The Solicitor told him (exhibit B para 5):

“It is complicated and I want to get advice from a colleague in our Parramatta office.”

18 The Solicitor’s file note of the conference on 2 April 2003 (exhibit 1, tab 5) records that the plaintiff told him Ms McLennan’s residence was worth between $350,000 - $400,000 and the farm was worth between $350,000 - $400,000. (This evidence did not make its way into the plaintiff’s affidavit which was read before Phegan DCJ). Also, the Solicitor made no note of any discussion about the NAB debt.

19 Next, the Solicitor sent the plaintiff a letter of advice dated 8 April 2003 (exhibit B annexure B). In summary, the Solicitor advised:

(a) Rather than basing a claim against Ms McLennan in contract, the plaintiff’s claim may be better presented ‘as a straight defacto relationships property claim based on contribution.’

(b) The plaintiff had made a significant financial contribution to the relationship in the form of payments to Ms McLennan’s solicitor and time and effort in pursuing the claim against NAB.

(c) It may be unnecessary to prove an agreement with Ms McLennan that she would ultimately pay the plaintiff $3,000 per month.

(d) Ms McLennan’s settlement with the NAB ‘resulted in a benefit to her of approximately $580,000’.

(e) The solicitor’s preliminary view was that the plaintiff’s contribution to the relationship could be worth up to 20% of that result or a sum of about $120,000.

(f) It would be much easier to prove the claim based on contribution than to prove the claim in contract.

(g) If the plaintiff’s contributions were assessed by a court as a contribution to the $580,000 result in Ms McLennan’s hands, then the plaintiff’s potential return would be greater than otherwise would be the case on a purely contractual basis.

(h) The claim would need to be brought in the District Court of New South Wales.

20 The Solicitor did not explain then or in the witness box how he arrived at the view that the plaintiff’s contribution “could be worth up to 20% of $580,000 … or a sum of about $120,000”, nor did he explain why it would be easier to prove that claim than “some sort of contract” with Ms McLennan when he had stated earlier in his letter that the plaintiff had “a claim against (Ms McLennan) in contract based on her agreement to employ you at $3,000 per month”.

21 In terms of the contract claim, the Solicitor stated in para 20 and following of his witness statement (exhibit 1) the reasons why he had doubts about it, but there is no evidence that these reasons were conveyed to the plaintiff at that time.

22 In paragraph 29 of his witness statement the Solicitor said he came to the view that the plaintiff ran a real risk of weakening his “de-facto claim” if, by making the contract claim, his credit was adversely affected. However, this was not conveyed to the plaintiff at the time.

23 The plaintiff said that having read the advice of 8 April 2003, he had a further meeting with the Solicitor in which the Solicitor told him that it would be harder to win the contract claim than a claim under the Property (Relationships) Act 1984 (the “Act”) (T 21.36).

24 The plaintiff did not immediately take steps to pursue his claim against Ms McLennan until October 2003 because, for a brief time, they resumed cohabitation. However, in October 2003 the plaintiff instructed the Solicitor to proceed. The Solicitor then advised the plaintiff in his letter of 22 October 2003 (exhibit B annexure D) that he had spoken to the Barrister and because the Plaintiff’s claim was “not a straightforward claim under the Act”, it would be better to have “the initial application” settled by the Barrister. He then went on to advise:

“When I say that yours is not a straightforward claim I do not mean that the claim is not without merit. You have considerable documentation and grounds to support an application in relation to the funds written off by the National Australia Bank and also in relation to the funds that you have contributed to Jacquelin’s solicitor and perhaps other financial and non-financial contributions during the course of your relationship with her. However, the usual situation is that parties are seeking orders in relation to assets which have been acquired during the relationship whereas your claim concerns the writing off of a pre-existing debt by the bank as a result of your efforts which has effectively increased Jacquelin’s net worth by some $600,000.00. This is the aspect of the claim which is not straightforward and which will need to be carefully pleaded in the initial application.”

25 The Solicitor’s evidence was he briefed the Barrister for the purpose of advising on the plaintiff’s claim and to advise on the evidence. (The Barrister conceded in cross-examination that he had given the Solicitor advice on evidentiary matters).

26 The Solicitor did not explain in his letter how he had come to the conclusion that the plaintiff’s efforts had effectively increased Ms McLennan’s net worth “by some $600,000” or precisely how this would be established.

27 On 3 December 2003 the plaintiff had a meeting with the Solicitor and the Barrister. At that time, he was not sure of the precise amount of the debt written off by the NAB in the settlement with Ms McLennan (T 33.30).

28 The Solicitor’s evidence was that at the conference on 3 December 2003 the Barrister advised the plaintiff he was better off pursuing his claim under the Act than anything else because there were problems proving “the oral contract in relation to wages”. The Barrister said that such a contract was not “as valuable as a contribution claim” and that it may “weaken your position to run them both”. However, there was no evidence given by the Solicitor that the Barrister explained to the plaintiff why an alternative claim in contract could weaken the claim under the Act.

29 The solicitor made a file note of the conference on 3 December 2003, a copy of which is at exhibit A p 25. It records the plaintiff was advised to do the following:

“Keith to go away and compile a chronological list of his contributions to:
. Bank statements
. Edward Street
. The Farm”

The Court infers that the reference to “bank statements” was a request made of the plaintiff. But the evidence shows that the plaintiff did not have those in his possession, nor would he be expected to have them as they belonged to Ms McLennan. In this respect, the Solicitor agreed in cross-examination that he discussed the NAB debt with the Barrister and concluded that the amount of the debt forgiven by the NAB was the relevant figure (T 64.46). But he gave no evidence that they discussed how it would be proved. When asked by the Court what steps were taken to ascertain the actual amount of the debt, the Solicitor’s response was evasive – he inferred that the bank may have been subpoenaed or the documents were produced under discovery (T 67.10). However, this was untrue because, on the evidence, this did not occur. When asked further about this, the Solicitor could only point to documents signed by Ms McLennan, but these contained varying amounts (T 68). The Solicitor was also asked further about a document prepared by the plaintiff recording a figure of $626,236.34 which the plaintiff believed was the NAB debt. The Solicitor agreed he had discussed this with the plaintiff, that it was probably at the conference on 3 December 2003 with the Barrister and that it was important that there be some hard evidence about the debt (T 73). However, the Solicitor evaded directly answering the question about what advice he gave the plaintiff to obtain such evidence of the NAB debt. It would seem he was content to rely on documents prepared by his client (see exhibit 8B), none of which contained direct, admissible evidence of the quantum of the NAB debt. I am therefore satisfied that the Solicitor did not ever properly turn his mind to this.

30 When asked further at T 75 and following about what advice he gave the plaintiff, the Solicitor said he advised the plaintiff that he had a claim under the Act “for a contribution, a significant contribution … to the ultimate result that Ms McLennan was able to achieve from the bank whereby a significant debt was forgiven thereby improving substantially the equity that she had in her various properties”.

31 I am satisfied on the evidence however, and in particular from the Solicitor’s cross-examination, that he gave no advice to the plaintiff prior to the commencement of proceedings or at any other time as to precisely how the plaintiff should establish that there was a substantial improvement in the net value of Ms McLennan’s property and in particular how the extinguishment of the NAB debt and its quantum should be proved to demonstrate this.

32 I am also satisfied that the Solicitor gave no advice to the plaintiff specifically about s 20 of the Act and how it operated from the Court’s point of view. The Solicitor acknowledged that s 20 of the Act was important in terms of the plaintiff obtaining relief. The Solicitor also acknowledged that it would have been an essential matter for him to have properly informed the plaintiff as a layman about the things that the Court takes into account in exercising its discretion under s 20.

33 The Solicitor agreed that he gave no advice to the plaintiff about the necessity of obtaining valuations or evidence of value, of the property of the parties. He also agreed that he gave no advice about the importance of establishing the value of the pool of assets if the plaintiff was to pursue a claim under the Act.

34 Although the Solicitor claimed that he discussed “credit” issues with the plaintiff, I do not accept this. I am satisfied that the Solicitor had a view that the plaintiff, together with Ms McLennan, may have made an exaggerated claim on the NAB and that a Judge might have taken the view that the plaintiff had gilded the lily somewhat. However, I am also satisfied on the evidence of the plaintiff that the Solicitor failed to convey this assessment to the plaintiff or advise as to its consequences (T 80-81).

35 On 7 March 2004 the plaintiff wrote to the Solicitor asking the following (exhibit B p 22):

“Do we have enough to start this moving, will my affidavit to this be enough to stand up in Court?”

The plaintiff explained the delay in writing to the Solicitor after the conference on 3 December 2003 occurred because there had been another brief period in which he had resumed cohabitation with Ms McLennan.

36 The plaintiff commenced proceedings against Ms McLennan when he filed the ordinary statement of claim in the District Court of New South Wales at Orange on 8 April 2004 (exhibit A 12).

37 I am satisfied on the evidence that the Barrister drafted the statement of claim pursuant to the brief which he had received on 2 November 2003. In that respect, paragraph 4 referred to the plaintiff’s “non-financial contributions to the continued ownership of (Ms McLennan’s) premises at 171 Edward Street Orange” with reference to the plaintiff’s work as the full time researcher and manager “of (Ms McLennan’s) debt dispute with the (NAB)”.

38 In paragraph 5 of the statement of claim, the plaintiff pleaded that by dint of his exertions “the apparent debt was waived and securities released”.

39 There was no reference in the statement of claim to the precise amount of the NAB debt nor were “securities” defined and connected up with the rest of the pleading. Further, although the statement of claim referred to Ms McLennan owning, both at the commencement of the relationship and at its conclusion, the farm at Carcour and the residence in Edward Street Orange, there was no attribution of worth to those properties or valuation particularised in the pleading.

40 Following service of the statement of claim Ms McLennan sought particulars (exhibit B p 23) including, importantly, the values ascribed by the plaintiff to Carcoar and the Edward Street Orange residence.

41 Although the plaintiff provided some information to the Solicitor in his letters of 21 May and 3 July 2004 to assist the Solicitor to prepare a response to the requested particulars, and although the Solicitor forwarded the particulars requested and the plaintiff’s letters to the Barrister, there is no evidence that any particulars were supplied to Ms McLennan’s solicitors and the inference the Court draws is that both the Solicitor and the Barrister failed to deal with this.

42 On 14 October 2004 the plaintiff’s affidavit was filed in the District Court at Orange (exhibit 8B tab 27). I am satisfied that the final form of the affidavit was drafted by the Barrister. It would seem to have been the result of a lot of correspondence between the Solicitor and the plaintiff and then the Solicitor and the Barrister, with neither the Solicitor nor the Barrister bothering to take the time, effort or trouble to actually sit down with the plaintiff and go through the facts so that the affidavit could be drafted and settled in accordance with the plaintiff’s instructions. Rather, it seems that the client was required to do the lion’s share of the work. In any event, whilst the affidavit was prepared in some detail with regard to the actual tasks carried out by the plaintiff in regard to Ms McLennan’s claim against the NAB, there is no evidence in the affidavit whatsoever of the amount of the NAB debt, nor is there any evidence of the value of the property of Ms McLennan, particularly the Edward Street Orange residence and the farm at Carcoar.

43 Furthermore, no other affidavit evidence boing to these matters was prepared.

44 After Ms McLennan’s affidavit evidence was served on the plaintiff, the Solicitor and Barrister advised him to provide responses to it: see the Solicitor’s letter dated 5 January 2005 and the Barrister’s e-mail dated 6 January 2005 (exhibit B pp 52-54). Neither the Solicitor nor the Barrister advised the plaintiff in these documents of the need to prove the NAB debt or the value of Ms McLennan’s farm and residence at Orange. Again, they did not sit down with the plaintiff and obtain his instructions.

45 The plaintiff’s claim against Ms Lennan was listed for hearing at the sittings of the District Court in Orange in May 2005. The matter was not reached.

46 The case came on for hearing at the next sittings before Phegan DCJ in August 2005. At the hearing on 19 August 2005 the Barrister appeared for the plaintiff and Mr D R Campbell SC appeared for Ms McLennan.

47 At the hearing, the Barrister read the plaintiff’s affidavit and that of his father. The plaintiff was then cross-examined on some of the material in his affidavit.

48 Upon closure of the plaintiff’s case, Senior Counsel for Ms McLennan applied for and was granted a non-suit pursuant to Part 29 Rule 29.9 of the Uniform Civil Procedure Rules which provides:

“(1) A defendant in proceedings in which the plaintiff is the beginning party may apply to the court for an order:


(a) for the dismissal of the proceedings, or

(b) for the dismissal of the proceedings to the extent to which they concern any cause of action relevant to the plaintiff’s claim for relief against that defendant,

on the ground that, on the evidence given, a judgment for the plaintiff could not be supported.

(2) Such an application may be made at any time after the conclusion of the evidence for the plaintiff in his or her case in chief.

(3) The plaintiff may argue, or decline to argue, the question raised by the application.

(4) The court may not make an order under this rule unless the plaintiff argues the question raised by the application and the defendant satisfies the court that, on the evidence given, a judgment for the plaintiff could not be supported

(5) If the plaintiff declines to argue the question raised by the application, or if the defendant fails to satisfy the court that, on the evidence given, a judgment for the plaintiff could not be supported, the defendant;


(a) may adduce evidence or further evidence, or

(b) may make an application under rule 29.10.

(6) If fewer than all defendants apply to the court under subrule (1), the court must not deal aith any such application before the conclusion of the evidence given for all parties.”

49 Mr Campbell SC had submitted that the order ought be made as there was no evidence about “full disclosure and valuations of all of (the parties) property during and following the conclusion of the relationship” to enable the Court to commence the process required under s 20 of the Act (exhibit A 125.42). Specifically, he pointed to the deficiency in there being no evidence of “how much was the mortgage … how much is the farm worth” (A 127.7). Ms McLennan’s counsel also highlighted the lack of evidence relating to the NAB debt, describing the “Incumbrance (sic) position” as “ … we don’t know whether it was a $1 mortgage or a $1 million mortgage” (A 133.54).

50 After hearing argument from the Barrister on behalf of the plaintiff, Judge Phegan accepted the submissions made on behalf of Ms McLennan and dismissed the plaintiff’s claim. There is no transcript of any separate reasons given by his Honour. His Honour’s reasons appear to have been included as part of the transcript of what took place in the District Court at Orange on 19 August 2005 (A 103 – 142). That transcript records that the Judge was not persuaded that he had the necessary “foundation evidence upon which a proper decision can be made under the Act” (A 138.55). He further stated at A 142.17:

“… it is an application under the Property Relations (sic) Act and as such it does require as I understand the authorities … the presentation of an asset picture of both parties accompanied by valuations and the evidence in this case falls far short of that …The proceedings have been … largely misconceived.”

51 It was in those circumstances that the Judge dismissed the plaintiff’s claim. Of course, the dismissal was not in the nature of a final judgment. Moreover, the “controversy” between the plaintiff and Ms McLennan had not been quelled and each of them was free to relitigate it (D’orta Ekenaike v Victorian Legal Aid (2005) 223 CLR1 at [43]).

52 His Honour also dismissed Ms McLennan’s cross-claim because senior counsel for her informed the Court that if the plaintiff’s claim was dismissed the cross-claim could not be pursued in the same proceedings. This was incorrect.

53 As a consequence of the dismissal of the plaintiff’s claim, he was ordered to pay Ms Lennan’s costs.

54 From the plaintiff’s point of view the result was a fiasco.

55 In order to achieve what he was looking for, the plaintiff changed solicitors and briefed new counsel to move the Court seeking leave to commence fresh proceedings under the Act against Ms McLennan. On 8 March 2007 such leave was granted, subject to a costs order in favour of Ms McLennan.

56 After proceedings were commenced, fortunately from the plaintiff’s point of view, a settlement was achieved with Ms McLennan by deed of release dated 2 October 2007 (A 187). The effect of the deed was a settlement of $75,000 in favour of the plaintiff. Under the deed it was agreed that the plaintiff would actually receive from Ms McLennan the amount of $40,000 because an amount of $35,000 was allowed for the costs the plaintiff was required to pay Ms Lennan pursuant to the costs orders made in the proceedings in which he had been non-suited and in the fresh proceedings concerning the grant of leave.

57 In these proceedings the plaintiff therefore seeks to recover from the defendants wasted costs in the amount of $35,000 paid to Ms McLennan and other costs incurred by him, being costs thrown away by him as a consequence of the negligence of the defendants.

58 Mr Curtin of counsel appeared for the Solicitor and his partners. Mr Curtin submitted that Phegan DCJ was in error in granting a non-suit to Ms Lennan in respect of the plaintiff’s claim under the Act because it was possible for the Court to do have done the best it could in putting a value on the assets of the parties: Paino v Paino (2008) NSW CA 276. It mattered not that Paino was decided three years after the plaintiff’s claim was dealt with in the District Court at Orange because the Court of Appeal in Paino merely stated the law as it had been for some time and certainly in 2005. In this respect Mr Curtin referred to the fact that the Barrister did not tender material in Ms McLennan’s affidavit as part of the plaintiff’s case in chief. Had he done so, this would have cured the problem. Mr Curtin relied on the expert evidence of Mr Sirtes SC that such evidence was admissible in a case under the Act (exhibit 8E pp 16-17).

59 Secondly, Mr Curtin submitted that Ms McLennan’s counsel made no application for a non-suit because of a lack of evidence regarding the NAB debt and in any event, there was some evidence going to the quantum of that debt. I do not accept this submission because, as can be seen from the transcript of the proceedings before the Judge, including the portions referred to above, a great deal was made of the fact that there was no evidence of the amount secured under the mortgages over the properties owned by Ms McLennan and clearly this had an impact in terms of the lack of evidence going to the value of those properties.

60 Ms Barrett of counsel appeared for the Barrister. She embraced the submissions made by Mr Curtain.

61 I do not accept the submissions made by the defendants on these issues. First of all, to assert that the Judge was in error in granting the non-suit is to overlook the fact that none of the matters now relied on were put to the Judge by the defendants. More importantly, and leaving that to one side, in my opinion it is unnecessary to investigate the correctness of the Judge’s decision because the fact of the matter is, as I shall now demonstrate, that senior counsel for Ms Lennan would not have been able to contemplate even making such an application but for the acts of negligence of the defendants prior to commencement of the proceedings and well in advance of the hearing.

62 The Solicitor admitted that it was an implied term of his retainer that he would exercise due care and skill concerning the plaintiff’s claim under the Act. Clearly, the Solicitor also had a duty at common law to do this as well. In this respect, the conduct of the plaintiff’s claim demonstrates incompetence of the worst kind from beginning to end. Apart from failing to advise the plaintiff how it was that he arrived at an assessment of the plaintiff’s claim as worth up to “20% of $580,000”, more importantly, the Solicitor failed to advise the plaintiff, at any time, that steps needed to be put in place to establish the worth of the farm at Carcoar and Ms McLennan’s residence in Orange and to explain how this could be done. This was a matter of commonsense. Even a solicitor who had no experience in dealing with matters under the Act would have realised, upon perusing the relevant provisions set out in s 20 of the Act, that it was a basic exercise in pursuing a claim to have evidence available to the court concerning these matters. The Solicitor failed entirely to address the matter. In doing so, the Solicitor failed to properly or adequately inform the plaintiff, prior to commencement of proceedings, as to how a claim can be made and prosecuted under the Act. Therefore, the Solicitor breached his retainer and was guilty of negligence. To compound this breach of duty, the Solicitor failed to advise the plaintiff that in order to test and determine what value Ms McLennan had received courtesy of the plaintiff’s efforts on her behalf, it was essential to ascertain the precise amount of the NAB debt in order to understand the value brought home to Ms McLennan by the way of the increase in her equity of redemption in the Carcoar farm and the residence in Orange. If, for example, it could be shown that the two properties together were worth $600,000 and that this was the precise amount of the forgiven NAB debt, then it could be demonstrated that the value of Ms McLennan’s equity of redemption in both properties had been restored to the tune of 100%. The Solicitor failed to address this issue entirely and he failed to tell the plaintiff in simple terms how the plaintiff could get hold of the NAB bank statements. The plaintiff could have done this, through his solicitor, by means of discovery or the issue of subpoenas and so on. The Solicitor failed to consider taking such steps.

63 I have no doubt, from the plaintiff’s evidence given in cross-examination, that if the plaintiff had been advised of the above matters he would have given instructions to the Solicitor well and truly before the proceedings came before Judge Phegan and, most certainly, before proceedings were commenced, to marshal the necessary evidence going to these matters. After all, before commencement of proceedings, he had asked the Solicitor in his letter dated 7 March 2004 (exhibit B p 22) if his affidavit would stand up in Court.

64 I am therefore satisfied that the plaintiff has established breach of duty and retainer on the part of the Solicitor and his partners and that the plaintiff is entitled to recover the damages assessed below.

65 In reaching this conclusion the Solicitor cannot hide behind the fact that he briefed the Barrister because he failed to exercise due skill and care in relation to the matters referred to which, in my opinion, were entirely matters of commonsense and which he failed to attend to. Accordingly, the Solicitor is not absolved from the Court’s finding of negligence simply because the Barrister was briefed in this matter. (Yates Property Corp Pty Limited (in liq) v Bolan (1998) 85 FCR 84; Davy-Chiesman v Davy-Chiesman (1984) 1 ALL ER 321; Orchard v South Eastern Electricity Board (1987) 1 QB 565 and Wakim v McNally (2002) 121 FCR 162. Nor have the Solicitor or Barrister been able to bring themselves within any protection afforded by s 5 0 of the Civil Liability Act 2002.

66 The plaintiff’s claim against the Barrister is that he was briefed by the Solicitor to advise generally concerning the plaintiff’s “legal entitlements”, to settle pleadings, settle affidavits and to appear at the hearing on his behalf. Although the Barrister admitted that he was briefed on 20 November 2003, he did not accept that he had received all of the instructions alleged by the plaintiff. However, the Barrister accepted that he owed the plaintiff a duty to exercise a reasonable level of skill and care in carrying out the instructions he actually received. In this respect the initial brief is at A 7-10. The observations to the Barrister made by the Solicitor include the following:

“We believe our client has a potential claim under the Defacto Relationship (sic) Act based on the contribution of his skill to the ultimately successful negotiations with the bank which effectively increased her net worth by nearly $600,000.00. During the relationship he contributed some $50,000.00 of his money to various joint living expenses and for specific expenses related to the bank’s claim and apparenhtly a great deal of his personal time and effort in drafting the various letters that are included in this brief and doing detailed and lengthy investigations into the transactions on the accounts with the National Australia Bank.

If our client can prove such contributions when we believe that he should be entitled to a percentage of the amount by which the assets Jacquelin McLennan increased during their relationship by reason of the successful negotiations with the bank.”

67 The barrister was then instructed:

“Would counsel please advise as to whether you agree that our client has a significant claim by reason of his contribution. If there are further details you need to please advise or alternatively we could arrange a further conference with the client.”

68 In the Barrister’s evidence in chief (exhibit 8A) he said he decided during the conference on 3 December 2003 with the plaintiff and the Solicitor that the plaintiff’s claim would be best brought under the Act because of the significant assistance the plaintiff had given Ms McLennan in resolving her dispute with the NAB. The Barrister said he formed the view that the work done by Mr Rogers arose out of “the personal relationship he had with Ms McLennan rather than the formation of any agreement that was intended to be legally binding”. However, I am not satisfied on the evidence that this was actually or properly conveyed to the plaintiff although the Barrister made it clear to the plaintiff that his claim against Ms Lennan was best brought under the Act.

69 The Barrister also formed the view of Mr Rogers that he “might have difficulties giving evidence”, but I am not satisfied that this was accurately or properly conveyed to the plaintiff at the time.

70 Immediately following the conference the Barrister send the Solicitor a letter (exhibit 8B tab 7) in which he stated:

“Before I am able to advise and draft any Statement of Claim, I require the following:-

1. Settlement statement for sale of your client’s Woodward Street house

2. Consent Orders (or terms) in your client’s Family Law property matter, and
3. The detailed statement of financial and non-financial contribution to Ms McLennan’s properties (171 Edward Street and “North West”, Carcoar).

My preliminary view is that your client has made financial contributions and a significant non-financial contribution to the preservation of Ms McLennan’s property, and he would be justified in seeking orders under the Property (Relationships) Act 1984.”

71 The clear inference which I draw is that the Barrister had accepted as an extension of his brief a retainer to advise the plaintiff concerning his rights and prospects of pursuing a claim under the Act. Noticeably, however, although the Barrister advised that the documents identified as 1, 2 and 3 in his letter were required, he made no mention of any documents relating to the NAB debt or which might establish and go towards proving the value or worth of Ms McLennan’s farm and residence in Orange. In addition, the Barrister conceded in cross-examination (e.g. T 134-135) that he had been briefed to advise on evidence. The effect of his answers in cross-examination was that he had turned his mind to the evidence that needed to be marshalled to substantiate the plaintiff’s cause of action. I am satisfied that this was before proceedings were commenced.

72 After the Solicitor provided the Barrister with a copy of the plaintiff’s letter of 7 March 2004, the Barrister drafted the Statement of Claim. To assist him in settling the plaintiff’s affidavit, the Barrister sought the following information from the Solicitor in his letter of 5 April 2004 (exhibit 8B p 13):

“Your client should start writing out in long form his affidavit setting out the history of the relationship, his financial position before, during and after and what he did by way of the financial and non-financial contributions to 171 Edward Street, NAB and the farm. Ask him to do this on computer. It need not be filed at this time, but it should be started.

It can be refined in conference and I can settle the refined version. Electronic formats would enhance and expedite this process.”

73 As stated earlier, the plaintiff was being required by both the Barrister and the Solicitor to do all the work. Eventually, the plaintiff produced his statement and this was emailed to the Barrister on 28 April 2004 by the Solicitor.

74 The plaintiff’s statement was quite detailed. In it he referred to his belief that the NAB debt was “about $626,236.34” but the belief was based on information in letters written on behalf of Ms McLennan to the NAB. Importantly, the plaintiff stated:

“… All the letters should be able to be clarified as genuine by Linda Johnson of Malisons (sic) Stevens (sic) & (sic) Jacques the NAB solicitors or Geof (sic) Rose of the NAB asset structuring department on 02 9237 3187 it may need a court order due to confidentiality.”

75 So, the Barrister was clearly on notice that sourced documents could be obtained through the NAB itself or its solicitors Malleson Stephen Jacques.

76 In his letter of 17 June 2004 (exhibit 8B tab 18) the Barrister said:

“I refer to this matter and the provision by e-mail of the ‘affidavit’ of your client.

I have commenced drafting the affidavit; however the material provided is insufficient in respect of the nature of the “relationship” other than some brief observations as to life at the Woodward Street house and very briefly at 171 Edward Street. The material does not disclose much more than living in the same houses and working on the NAB claim together.

Please ask your client for instructions as to the incidence of consortium vitae …

Please also ask him for a main point chronology (a ‘time line’ as they are now being called). This will ensure the affidavit ‘reads’ easily.”

77 The Barrister concluded by saying that the affidavit would need to be settled in conference when he had completed the draft and provided it to the Solicitor so the Solicitor could obtain the plaintiff’s instructions.

78 Importantly, the Barrister failed to make any mention to the Solicitor in his letter of advice dated 17 June 2004 of the importance of marshalling information about the NAB debt and the value or worth of the farm at Carcoar and the residence at Orange. This was notwithstanding that, clearly, at this time, the Barrister was briefed to advise the plaintiff as to how to prosecute his claim in terms of the evidence that was required.

79 On 10 August 2004 the Solicitor sent the Barrister Ms McLennan’s defence and cross-claim and instructed him to “please prepare draft affidavit in response” (exhibit 8B tab 20).

80 On 12 August 2004 the Solicitor sent the Barrister a further draft of the plaintiff’s affidavit. He effectively briefed the Barrister to settle the affidavit because he asked him in his letter to “review the affidavit and make any amendments you deem appropriate”.

81 The Barrister advised the Solicitor in his letter of 13 August 2004 that he would read the new draft against the draft of an affidavit he had prepared earlier and saved on his computer.

82 Although the Barrister advised the Solicitor to obtain detailed instructions with respect to the defence and cross-claim, again no mention was made of the two critical factual matters which required evidence from the plaintiff, namely the NAB debt and the value or worth of the Carcoar farm and the residence in Orange.

83 On 10 September 2004 the Barrister settled the plaintiff’s affidavit and returned it to the Solicitor (exhibit 8B tab 23). I have already highlighted the deficiencies in this affidavit earlier in the judgment.

84 Following service of Ms McLennan’s affidavit evidence, the Solicitor sent a draft affidavit of the plaintiff to the Barrister hoping that he would have time to settle it (exhibit 8B tab 25). It would seem that the Barrister did not have sufficient time to settle the plaintiff’s additional affidavit and that the process was completed by the Solicitor. However, nothing turns on this.

85 On 5 January 2005 the Solicitor sent the Barrister a copy of Ms McLennan’s affidavit and instructed him as follows:

“Once you have read the enclosed affidavit could you please telephone the writer to discuss it and could you turn your mind to whether there is any aspect of the matter we should particularly focus on in the affidavit in reply.

You may recall that Keith has extensive computer records of the letters, spreadsheets, etc. that he prepared on his computer in relation to Jaquelin’s case. Should we, in the affidavit in reply, produce those as exhibits in the affidavit together with the additional documentation that Keith has to prove some of his expenditure?”

86 The Barrister advised the Solicitor by email on 6 January 2005. The email is detailed but, regretfully, the Barrister failed to give any advice about marshalling evidence relating to the NAB debt and the value or worth of the Carcoar farm and residence in Orange.

87 Again, it will be seen that the plaintiff was required to do all the hard work himself, which he duly did. A copy of his detailed instructions was forwarded to the Barrister on 11 January 2005 (exhibit 8B tab 34).

88 On 1 February 2005 the Barrister sent the Solicitor a draft affidavit to be made by the plaintiff in response to that of Ms McLennan’s. The draft at exhibit 8B tab 35 did not include any information concerning the two critical matters already referred to. This was hardly surprising as it had not been asked for. Notwithstanding, the Barrister’s evidence in chief (exhibit A para 68) was that he therefore decided that there was sufficient material available to enable the case to be conducted. He said that in making such a decision he was cognisant of the provisions of s 19 of the Act.

89 The Barrister’s affidavit in chief and his oral testimony discloses that at all times he failed to understand the significance of establishing the value of the NAB debt because it was central to establishing the value returned to Ms McLennan of her equity of redemption in relation to the Carcoar farm and the residence in Orange. To ascertain that figure it was also a central plank in any proposed claim made by the plaintiff to establish the value of those two properties on the real estate market. These matters were basic because any Judge trying the case would need to review such evidence in order to determine what order, if any, ought be made to adjust the property of Ms McLennan in favour of the plaintiff.

90 The Barrister’s complete failure to appreciate these matters is demonstrated by what he said in chief(para 69):

“At all relevant times it was my opinion that the value of the property at 171 Edward Street Orange and the farm at Carcoar were of no particular importance because it was Mr Rogers’ contribution to achieving a reduction in Ms Lennan’s indebtedness that was the most valuable contribution he made during the course of his relationship with Ms McLennan. The value of the properties was not controversial in the sense that Mr Rogers did not dispute the values ascribed by Ms McLennan in paragraph 5 of Ms McLennan’s affidavit.”

91 I am reinforced in coming to this conclusion by virtue of the evidence given by the Barrister during cross-examination. For example, he did not consider it was a relevant consideration on his part to advise by how much Ms McLennan had been “ripped off” because it was not a relevant consideration (T 101.37). At the same time, he asserted that it was important to ascertain whether any of the NAB debt was “real debt” and whether it was debt “for which she had been ripped off” (T 101.46). Although the Barrister asserted he did this after the conference on 3 December 2003, I do not accept his evidence. In any event, he conceded at T 102.12 that he did not give advice to the Solicitor or the plaintiff about these matters, the explanation being that such advice was not requested. However, this is contrary to the Court’s finding that the Barrister was retained to advise about this because he was briefed to advise the plaintiff, through the Solicitor, as to how to prosecute his claim. That included advice about marshalling the evidence. In any event, he insisted it was not important to give any advice as to how the NAB debt was incurred (T 102).

92 Mr Surtees SC, who gave expert evidence for the Barrister, said that in his opinion, at the initial conference, the Barrister should have given advice concerning the “magnitude of the extinguishment of the debt which really seemed to be the only change in the (asset) position” (T 159.14). He went on further to say at T 160.3:

“ … her asset position had changed. It had effectively increased by the amount of the release (of the debt). And so long as there could be a linkage between work that he had done and that result, then it was an available argument for him to raise in the context of a s 20 suit that he was entitled to sum (sic) apportionment based upon the change in her financial position in consequence of the work that he had done to contribute to that outcome.”

93 The Barrister also maintained he did not give any advice as to what was required to pursue the plaintiff’s claim under s 20 of the Act because the advice was not asked for. I do not accept this answer. In my assessment, the answer was given in order to avoid liability to the plaintiff. Further, in my assessment, the Barrister well knew he had been asked to give such advice and that he realised after Judge Phegan had granted the non-suit that he had been negligent in not attending to the matter from the beginning and, but for his negligence and the negligence of the Solicitor, no application could possibly have been made to non-suit the plaintiff. This is demonstrated by the fact that although he sent the Solicitor memoranda of his fees, the fees were not paid and he did nothing to follow up on this. Further, the Barrister could not explain in the witness box why he had failed to advise the plaintiff, through the Solicitor, about the matters relating to the discharge of the NAB mortgage and the forgiveness of the NAB debt (T 108). At the same time, when pressed, the Barrister accepted that it was part of his obligation to advise on the evidence required to substantiate the plaintiff’s claim under the Act (T 109).

94 Although the Barrister asserted in the witness box that there was evidence of the NAB debt, he backed away from this assertion when pressed and conceded that in fact there was no evidence from the National Australia Bank which indicated what it was owed (T 124). He agreed the matters he was relying on were nothing but hearsay (T 125).

95 Finally, although the Barrister said in cross-examination by counsel for the Solicitor that quantification of the amount of NAB debt that was forgiven was a matter which went through his mind in his final preparation for the hearing, I do not accept that evidence. In my assessment, the answer was given to avoid embarrassment on the part of the witness in having to concede that he entirely missed or overlooked a very basic requirement in the preparation of the plaintiff’s case. It had never occurred to him at any stage to advise the Solicitor to issue a subpoena to the National Australia Bank or to serve a notice to admit on Ms McLennan’s solicitors concerning the NAB debt. He just did not turn his mind to it.

96 Unsurprisingly, the Barrister admitted in his defence that he owed the plaintiff a duty to exercise a reasonable level of care and skill. In this respect I am satisfied that the Barrister breached that duty by failing to advise the plaintiff properly from the beginning, that is, before the commencement of the proceedings about:

(a) his rights under the Act.

(b) how to prosecute a claim under the Act.

(c) How, why and what evidence needed to be marshalled to establish the value and worth of Ms McLennan’s farm and residence in Orange.

(d) How, why and what evidence needed to be marshalled to establish the quantum and make up of the NAB debt that was extinguished.

97 There was a continuation of each of these breaches until the hearing before Phegan DCJ.

98 Both the Solicitor and the Barrister sought to rely on advocates immunity as a defence to the plaintiff’s claims against them. They sought to bring themselves within the test set out in Giannarelli v Wraith (1988) 165 CLR 53 and D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1by asserting that it was the plaintiff’s case that had his other case against Ms McLennan been prepared and presented properly a different result would have been reached. Reliance was placed on what was said in this regard by Ipp JA at 116 in Symonds v Vass (2009) 257 ALR 689 in explaining that important parts of the judgments in Walton T/as Picture Walton & Co v Efato Pty Limited (2008) NSW CA 86 and Coshott v Barry (2009) NSW CA 34 were obiter only.

99 The defendants’ submissions in this respect seek to put a complete gloss on the plaintiff’s case in this Court against them with a view to bringing themselves within the advocates immunity defence. It is abundantly clear from Gianarelli and D’Orta-Ekenaike that advocates immunity only applies to conduct in Court or conduct intimately connected with the hearing of the case. In this respect, although it is true that important parts of the judgments of Tobias, JA in Pitcher Walton v Efato and Ipp JA in Coshott v Barry are obiter, they are nevertheless very persuasive and, with respect, helpful from the point of view of a first instance Judge.

100 As Tobias JA noted in Pitcher Walton v Efato, it is hard to see why a failure to obtain necessary evidence must always be classified as a decision affecting the manner in which a case is conducted in Court: see also Dancor Pty Limited v Pagotto (2008) NSW SC 112.

101 The defence of advocates immunity has not been made out either by the Solicitor or by the Barrister because, prior to commencement of proceedings, each failed to properly or adequately advise the plaintiff about the matters referred to in paragraph 96. I am satisfied that at least one reason for this was that, in each case, neither the Solicitor nor the Barrister understood how to properly make an application under the Act and what it entailed. Furthermore, it could not be said these breaches were decisions which were so intimately connected with the conduct of the case in Court, particularly as the breaches occurred well and truly before proceedings were commenced.

102 The plaintiff is therefore entitled to succeed on his claims against all the defendants.

103 The plaintiff claims wasted costs of $55,791 as a result of the defendants’ breaches of duty. The defendants do not dispute the arithmetic but they submit that because the plaintiff relied, to a certain extent, on the work done previously by the Solicitor and charged for by him, that there was no failure of consideration and the plaintiff got the benefit of that work. In this respect the amounts charged by the Solicitor total $4,237 for various attendances on the plaintiff.

104 With regard to the defendants’ submission, it seems to me that the plaintiff obtained a very small benefit from the work done on his behalf by the Solicitor. I assess the value of that work in the amount of $1,000.

105 Accordingly, the amount of $54,791.00 will be included in the plaintiff’s damages.

106 In paragraph 13c of the amended statement of Claim, the plaintiff seeks damages as a result of suffering from a “psychological/psychiatric injury diagnosed as adjustment disorder with mixed features of anxiety and depression”.

107 The plaintiff accepts that this part of his claim, being in the nature of a claim for damages for personal injury, is governed by the provisions of the Civil Liability Act 2002.

108 Some psychiatric evidence was tendered by both the plaintiff and the defendants. In the opinion of the defendants’ psychiatric expert (exhibit 8F), although the plaintiff was distressed, disillusioned and upset, “he did not give a history containing the depths and breadth of signs and symptoms required for a formal psychiatric diagnosis” either at the time of the original proceedings being dismissed or when he met with this psychiatrist. In the opinion of the plaintiff’s expert psychiatrist the plaintiff “suffered from a possible adjustment disorder with mixed features of anxiety and depression”.

109 I regard Mr Rogers as an impressive witness. I also regard him as a person with quite a degree of fortitude. Indeed, I note that his own expert concluded that the plaintiff was “currently psychiatrically well” (exhibit C). Accordingly, I am not satisfied that the plaintiff has suffered a recognised psychiatric illness for the purposes of s 33 of the Act. Therefore, there will be no award of damages in relation to this aspect of the plaintiff’s claim.

110 The plaintiff also claims damages for inconvenience, vexation and distress. He contends that the Civil Liability Act does not apply to such a claim. The plaintiff recognises that if the Act applied he would not be able to satisfy s 16 of the Act because any vexation and distress he suffered could not amount to at least 15% of a most extreme case.

111 For their part, the defendants submitted that the claim for vexation and distress is covered under the Civil Liability Act.

112 The plaintiff submitted that a claim for vexation and distress was not within the definition of “personal injury” in s 11 of the Civil Liability Act. The plaintiff relied on what Spiegelman CJ said in State of NSW v Ibbett (2005) 65 NSW LR 168 at 21 and 22. However, his Honour did not determine the point.

113 In the same case Ipp JA said at 124 and 125:

“In my view, anxiety and distress would be an ‘impairment’ of a person’s mental condition in accordance with the ordinary meaning of ‘impairment’ as the word is used in s 11.

In my opinion, irrespective of whether the ordinary meaning of the word is attributed to ‘injury’ or whether it is given the meaning defined in s 11 the word is wide enough to encompass anxiety and stress.”

114 Although Basten JA did not decide the point, he doubted whether what Spiegelman CJ said was correct. That being so, I propose to follow Ipp JA with the result that there will be no damages awarded to the plaintiff for vexation and distress (see also: Stephanie Young v Insight Vacations Pty Limited (2009) NSW DC 122). In any event, I am not satisfied, in terms of any damages recoverable for breach of contract, that the nature of the plaintiff’s claim falls within the very limited class of cases identified by the High Court in Baltic Shipping Company v Dillon (1992-1993) 176 CLR 344. If I were wrong about this, I would have awarded the plaintiff damages of $10,000 for the inconvenience caused to him by having to start and go through the proceedings again.

115 The plaintiff is entitled to interest on the damages awarded. In this respect, there is no evidence before the Court as to the dates on which the various invoices in exhibit F were paid. Therefore, in the circumstances, I consider it appropriate to award interest on damages for two years in accordance with the rates prescribed by the UCP Rules. The amount of interest is $10,090.

116 Accordingly, there will be a Verdict in favour of the plaintiff for $64,880.

117 One final matter remains. That concerns the cross-claims between the Solicitor and the Barrister and the questions of apportionment pursuant to s 35 of the Civil Liability Act. In my opinion, the Solicitor and the Barrister should equally bear responsibility for their breaches of duty. I do not consider that the negligence of one contributed more than the negligence of the other to the damages suffered by the plaintiff.

118 In the result, there will be a Judgment against the first to seventh defendants in the amount of $32,440 and a Judgment against the eighth defendant of $32,440.

119 I direct that the exhibits be returned.

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