Kekatos v Sanson & Ano - [2009] NSWCA 171

New South Wales

Court of Appeal

CITATION: Kekatos v Sanson & Ano [2009] NSWCA 171

HEARING DATE(S): 19/03/2009

JUDGMENT DATE:
2 July 2009

JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Handley AJA at 3

DECISION: (1) Appeal allowed with costs.
(2) Judgment of the District Court set aside, and in lieu thereof substitute judgment for the first defendant in the action with costs.
(3) The respondents are to have a certificate under the Suitors Fund Act.

CATCHWORDS: TORTS - negligence – duty of solicitor – to exercise reasonable care – no duty to ensure particular result. - SOLICITOR – negligence – duty to exercise reasonable care – no duty to ensure particular result.

CASES CITED: Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42

PARTIES: Kekatos t/asKekatos Lawyers - Appellant
Ruthelise Jay Sansom & anor - Respondent

FILE NUMBER(S): CA 40153/2008

COUNSEL: N C Hutley SC and M C L Dicker - Appellant
J Gormley SC and M Galvin - Respondent

SOLICITORS: Connery Partners - Appellant
Reimer Winter Williamson - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC3934/2005

LOWER COURT JUDICIAL OFFICER: Truss DCJ

LOWER COURT DATE OF DECISION: 12/05/2008

40153/08

TOBIAS JA
MCCOLL JA
HANDLEY AJA
THURSDAY 2 JULY 2009

JIM KEKATOS T/as J KEKATOS LAWYERS v RUTHELISE JAY

SANSOM & ANOR

CATCHWORDS

NEGLIGENCE – duty of solicitor – to exercise reasonable care – no duty to ensure particular result.

SOLICITOR – negligence – duty to exercise reasonable care – no duty to ensure particular result.

HEADNOTES

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 Kekatos v Sanson & Ano

Details

AGLC: Kekatos v Sanson & Ano [2009] NSWCA 171
Case: [2009] NSWCA 171
Decision Date: 2 July 2009

CaseChat Overview and Summary

The appeal concerned a claim for professional negligence brought by the respondents, Mr and Mrs Sanson, against the appellant, Mr Kekatos, a solicitor. The Sansons alleged that Mr Kekatos had been negligent in his conduct of litigation on their behalf, which resulted in a less favourable outcome than they had anticipated. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether Mr Kekatos had breached his duty of care to his clients, the Sansons. Specifically, the court had to determine if the solicitor's conduct fell below the standard of reasonable care and skill expected of a solicitor in his position, and whether this alleged breach caused the Sansons loss. The court was not asked to determine whether the solicitor had guaranteed a particular outcome in the litigation.

The Court of Appeal found that the Sansons had failed to establish that Mr Kekatos had acted negligently. The court reasoned that a solicitor's duty is to exercise reasonable care and skill, not to guarantee a particular result. The evidence did not demonstrate that Mr Kekatos's actions or advice fell below the required standard of care, nor that any alternative course of action would have necessarily led to a better outcome for the Sansons.

Consequently, the appeal was allowed, the judgment of the District Court was set aside, and judgment was entered for the first defendant, Mr Kekatos, with costs. The respondents were also granted a certificate under the Suitors Fund Act.

Orders

Orders of the court

(1) Appeal allowed with costs. (2) Judgment of the District Court set aside, and in lieu thereof substitute judgment for the first defendant in the action with costs. (3) The respondents are to have a certificate under the Suitors Fund Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kekatos v Sanson & Ano [2009] NSWCA 171
HEARING DATE(S):	19/03/2009
JUDGMENT DATE:	2 July 2009
JUDGMENT OF:	Tobias JA at 1; McColl JA at 2; Handley AJA at 3
DECISION:	(1) Appeal allowed with costs. (2) Judgment of the District Court set aside, and in lieu thereof substitute judgment for the first defendant in the action with costs. (3) The respondents are to have a certificate under the Suitors Fund Act.
CATCHWORDS:	TORTS - negligence – duty of solicitor – to exercise reasonable care – no duty to ensure particular result. - SOLICITOR – negligence – duty to exercise reasonable care – no duty to ensure particular result.
CASES CITED:	Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42
PARTIES:	Kekatos t/asKekatos Lawyers - Appellant Ruthelise Jay Sansom & anor - Respondent
FILE NUMBER(S):	CA 40153/2008
COUNSEL:	N C Hutley SC and M C L Dicker - Appellant J Gormley SC and M Galvin - Respondent
SOLICITORS:	Connery Partners - Appellant Reimer Winter Williamson - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC3934/2005
LOWER COURT JUDICIAL OFFICER:	Truss DCJ
LOWER COURT DATE OF DECISION:	12/05/2008