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Kendirjian v Lepore

Kendirjian v Lepore

Case [2015] NSWCA 132 21 May 2015

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kendirjian v Lepore [2015] NSWCA 132
Hearing dates: 24 March 2015
Decision date: 21 May 2015
Before: Macfarlan JA at [1];
Leeming JA at [45];
Bergin CJ in Eq at [54];
Decision:
Leave to appeal granted.
Direct the applicant to file and serve his Notice of Appeal within seven days of the date of this judgment.
Dismiss the appeal.
Order the applicant to pay the respondents’ costs of the application for leave to appeal and the appeal.

Catchwords: NEGLIGENCE – professional negligence – lawyers – duties and liabilities – advocate’s immunity – settlement of proceedings – whether alleged failure to advise in relation to settlement offer was a decision affecting the conduct of the case in Court – test in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 applied – leave granted – appeal dismissed
Cases Cited: Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Attard v James Legal Pty Ltd [2010] NSWCA 311
Bott v Carter [2012] NSWCA 89
Chamberlain v Ormsby [2005] NSWCA 454
Dansar Pty Ltd v Pagotto [2008] NSWSC 112
Donnellan v Woodland [2012] NSWCA 433
D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1
Ex parte Bucknell [1936] HCA 67; 56 CLR 221
Gett v Tabet [2009] NSWCA 76
Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335
Rees v Sinclair [1974] 1 NZLR 180
Young v Hones [2014] NSWCA 337
Category: Principal judgment
Parties: David Kendirjian (Applicant)
Eugene Lepore (First Respondent)
Jim Conomos (Second Respondent)
Representation:
Counsel:
B W Walker SC/D Aquilina (Applicant)
B McManus (First Respondent)
J Agius SC/A Hawkins (Second Respondent)
Solicitors:
Mason Black Lawyers (Applicant)
Colin Biggers & Paisley (First Respondent)
Carneys Lawyers (Second Respondent)

File Number(s): CA 2014/173599
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Citation:

Kendirjian v Lepore [2014] NSWDC 66

Date of Decision:

16 May 2014

Before:

P Taylor SC DCJ

File Number(s):

2012/312681

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 November 1999 Mr David Kendirjian, the applicant, was injured when a vehicle in which he was travelling collided with a vehicle driven by Ms Cheree Ayoub. In 2004 Mr Eugene Lepore, a solicitor and the first respondent, commenced District Court proceedings on Mr Kendirjian’s behalf against Ms Ayoub. Ms Ayoub admitted liability and a five day hearing on the quantum of Mr Kendirjian’s loss was fixed to commence on 30 August 2006 before Delaney DCJ. Mr Lepore briefed Mr Jim Conomos, a barrister and the second respondent, to appear for Mr Kendirjian.

On the first day of the hearing, and after some earlier negotiations, Ms Ayoub’s legal representatives communicated to the respondents an offer to settle the proceedings for $600,000 plus costs.

Mr Kendirjian alleged that the respondents did not advise him of the amount of that settlement offer “but merely…

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 Kendirjian v Lepore

Details

AGLC: Kendirjian v Lepore [2015] NSWCA 132
Case: [2015] NSWCA 132
Decision Date: 21 May 2015

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal in *Kendirjian v Lepore*. The appellant, Mr. Kendirjian, alleged professional negligence against his former solicitors, Mr. Lepore and his firm. The core of the dispute concerned the solicitors' conduct in relation to a settlement offer made during earlier litigation. Mr. Kendirjian contended that his solicitors negligently failed to advise him adequately regarding this settlement offer, which he ultimately rejected, leading to a less favourable outcome in the subsequent court proceedings.

The central legal issue before the Court of Appeal was whether the alleged failure to advise in relation to the settlement offer constituted a matter that fell within the scope of advocate's immunity from suit. Specifically, the court had to determine if this alleged failure was a decision affecting the conduct of the case in court, thereby attracting the protection of advocate's immunity as established in *D'Orta-Ekenaike v Victorian Legal Aid*.

The Court of Appeal applied the principles from *D'Orta-Ekenaike v Victorian Legal Aid*, which holds that advocate's immunity extends to work done out of court that is so intimately connected with the conduct of the cause in court that it can fairly be said to be part of the conduct of the cause itself. The court reasoned that advice regarding a settlement offer, particularly when that offer is made in the context of ongoing litigation and its acceptance or rejection directly impacts the progression and potential resolution of the court case, is intrinsically linked to the conduct of the litigation. Therefore, such advice falls within the ambit of advocate's immunity.

Leave to appeal was granted, but the appeal itself was dismissed. The applicant, Mr. Kendirjian, was ordered to pay the respondents' costs of both the application for leave to appeal and the appeal.

Orders

Orders of the court

Leave to appeal granted.

Direct the applicant to file and serve his Notice of Appeal within seven days of the date of this judgment.

Dismiss the appeal.

Order the applicant to pay the respondents’ costs of the application for leave to appeal and the appeal.

Background

Background to the litigation

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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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Citations

AGLC Citation

Kendirjian v Lepore [2015] NSWCA 132

Most Recent Citation

Arnold Thomas and Becker v Finch [2015] VCC 1431

Cases citing this decision · 16 of 16 shown

AC v R
[2023] NSWCCA 133 Para 41

…ondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396 at [215]–[216]. On the other hand, in Kendirjian v Lepore [2015] NSWCA 132 ( Kendirjian ) at [28], Macfarlan JA referred to Gett in the context of discussing whether to follow the seriously considered dicta of a previous decisi…
High Court Bulletin
[2017] HCAB 3

…Appealed from NSWSC (CA): [2015] NSWCA 132…
Kendirjian v Lepore
[2017] HCA 13 Para 23

…of this case, and that the decision in Donnellan was not plainly wrong[17]. [16](2013) ANZ ConvR ¶13-001; [2012] NSWCA 433. [17] Kendirjian v Lepore [2015] NSWCA 132 at [28]. See also at [51] per Leeming JA.…
High Court Bulletin
[2017] HCAB 2

…Appealed from NSWSC (CA): [2015] NSWCA 132…
High Court Bulletin
[2017] HCAB 1

…Appealed from NSWSC (CA): [2015] NSWCA 132…
Rogers v Roche
[2016] QCA 340 Para 1

…cted with in court work, in terms of the test for advocate’s immunity in Giannarelli as it was described in D’Orta-Ekenaike . [49][2015] NSWCA 132 at [45]. [50][2015] NSWCA 132 at [33]–[41], [56].…
High Court Bulletin
[2016] HCAB 9

…Appealed from NSWSC (CA): [2015] NSWCA 132…
High Court Bulletin
[2016] HCAB 7

…Appealed from NSWSC (CA): [2015] NSWCA 132…
Liprini v McIntyre
[2016] NSWSC 1195 Para 37

…ould pare back the scope of the immunity in the way it has, particularly given the consistent judgments of the Court of Appeal in Kendirjian v Lepore [2015] NSWCA 132; Young v Hones [2014] NSWCA 337 and Jackson Lalic Lawyers Pty Ltd v Attwells .…
High Court Bulletin
[2016] HCAB 5

…Appealed from NSWSC (CA): [2015] NSWCA 132.…
Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors
[2016] NSWSC 303 Para 161

…potential infringement of that principle on the facts of any given case ( Attard v James Legal Pty Ltd per Giles JA at [27]; Kendirjian v Lepore [2015] NSWCA 132 at [40]-[42], [52]-[54]).…
Stillman v Rusbourne
[2015] NSWCA 410 Para 7

…596 (Dawson J). 7. D’Orta-Ekenaike at [86] (Gleeson CJ, Gummow, Hayne and Heydon JJ); see also [151] (McHugh J); Kendirjian v Lepore [2015] NSWCA 132 at [51] (Leeming JA); see also S Walmsley, A Abadee, B Zipser, G Sirtes, Professional Liability in Australia (3rd ed, Thomson Reuters, 2016) at [31190]. 8. Giannarel…
Stella Maris College v Robin-True
[2015] NSWWCCPD 57 Para 4

…ainly wrong”, should be accepted by a lower court (or tribunal) (Macfarlan JA (Leeming JA and Bergin CJ in Eq agreeing) in Kendirjin v Lepore [2015] NSWCA 132 at [33]).…
Turner v Stewart Alan Levitt t/as Levitt Robinson Solicitors
[2015] NSWDC 137 Para 31

…eed state no more than that this conclusion plainly flows from D’Orta (for example paragraph 67 to 69) and is also evident in Kendirjian v Lepore [2015] NSWCA 132 at paragraphs 42, 52 and 53.…
Arnold Thomas and Becker v Finch
[2015] VCC 1431

…v Blakney (1970) 44 ALJR 123; Giannarelli v Wraith (1988) 165 CLR 543; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Kendirjian v Lepore [2015] NSWCA 132; Goddard Elliot v Fritsch [2012] VSC 87; Bill Acceptance Corporation Ltd v GWA (1983) 50 ALR 242 Judgment: (1) The defendant’s liberty to reopen her case…
Ligon Sixty-Three Pty Ltd v ClarkeKann
[2015] QSC 153 Para 14

…18-19 [36]-[39]; see also Biggar v McLeod [1978] 2 NZLR 9, 12, 13; Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 [120]. [28] [2015] NSWCA 132. [29] [2015] NSWCA 132 [47].…

View all 16 citing cases →

Cases cited in this decision · 15 of 15 shown

Young v Hones
[2014] NSWCA 337 Para 41

…This Court reached a similar conclusion in Young v Hones [2014] NSWCA 337 in which damages were claimed on the basis that the appellant’s lawyers’ negligence resulted in Land and Environment Court proceedings being settled. The Court held that the lawyers were immune from suit and Ward JA (with whom Bathurst CJ and…
Jackson Lalic Lawyers Pty Ltd v Attwells
[2014] NSWCA 335 Para 35

…This observation was considered in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 where solicitors were sued for damages for negligent advice to settle court proceedings which led to the entry of judgment by consent. The plaintiffs submitted that the defendants were not immune from suit as the plaintiffs…
Kendirjian v Lepore
[2014] NSWDC 66

…/173599 Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Citation: Kendirjian v Lepore [2014] NSWDC 66 Date of Decision: 16 May 2014 Before: P Taylor SC DCJ File Number(s): 2012/312681…
Donnellan v Woodland
[2012] NSWCA 433 Para 25

…In Donnellan v Woodland [2012] NSWCA 433, the respondent succeeded at first instance in recovering damages for the appellant solicitor’s negligence in advising the respondent in relation to court proceedings that the respondent pursued but lost. On appeal, this Court found that the appellant had not been negligent…
Bott v Carter
[2012] NSWCA 89 Para 32

…In Bott v Carter [2012] NSWCA 89, an unsuccessful plaintiff in a personal injuries claim sued his lawyers for damages for negligence. The alleged negligence related to the lawyers’ conduct of the proceedings including “[f]ailing to engage in settlement discussions” (quoted at [17]). Basten JA (with whom McColl and…
Attard v James Legal Pty Ltd
[2010] NSWCA 311 Para 32

…In Attard v James Legal Pty Ltd [2010] NSWCA 311, the alleged negligence was the solicitors’ failure to advise a company in administration that they were acting for in defending a cross-claim that the cross-claimant needed the leave of the Court to proceed. The Court held that the solicitors were immune from a clai…
Gett v Tabet
[2009] NSWCA 76 Para 28

…ds to the continuation of court proceedings. Because the observation constitutes seriously considered dicta, is not plainly wrong (see Gett v Tabet [2009] NSWCA 76 at [274]-[295]), and is consistent with the other authorities discussed below, the correctness of the observation should be accepted. Contrary to the a…
Kendirjian v Ayoub
[2008] NSWCA 194 Para 4

…On 13 October 2006 Delaney DCJ delivered a judgment awarding Mr Kendirjian $308,432.75 in damages. This Court dismissed an appeal on 14 August 2008 ([2008] NSWCA 194). McColl JA (with the concurrence of Beazley JA, as her Honour then was) observed that Mr Kendirjian’s credibility had been “at the heart of the issue…
Dansar Pty Ltd v Pagotto
[2008] NSWSC 112 Para 29

…submission in Donnellan relied on the decisions in Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 and of Harrison J in Dansar Pty Ltd v Pagotto [2008] NSWSC 112. In the former, the Western Australian Court of Appeal held that advocate’s immunity arguably did not apply to a solicitor’s advice (which was acted up…
Alpine Holdings Pty Ltd v Feinauer
[2008] WASCA 85 Para 29

…Mr Woodland’s second submission in Donnellan relied on the decisions in Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 and of Harrison J in Dansar Pty Ltd v Pagotto [2008] NSWSC 112. In the former, the Western Australian Court of Appeal held that advocate’s immunity arguably did not apply to a solicitor’s advi…
Chamberlain v Ormsby t/as Ormsby Flower
[2005] NSWCA 454 Para 24

…In Chamberlain v Ormsby [2005] NSWCA 454, Tobias JA (with whom Giles JA agreed) found that a barrister who had given advice that led to the settlement of a damages claim was immune from suit. His Honour said that it was “difficult to imagine a stronger case than the present where the advice given by the barrister l…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 Para 6

…on the basis that the respondents were immune from suit under the advocates’ immunity principle stated in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1.…
Giannarelli v Wraith
[1988] HCA 52 Para 12

…also in respect of “work done out of court which leads to a decision affecting the conduct of the case in court” (quoting Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at 560 per Mason CJ) or “work intimately connected with” work in a court ( D’Orta-Ekenaike [86]). The plurality, in whose judgment these state…
Ex parte Bucknell
[1936] HCA 67 Para 7

…lie if leave were granted. In my view leave should be granted as the decision effectively determined Mr Kendirjian’s rights (see Ex parte Bucknell [1936] HCA 67; 56 CLR 221 at 226), he now being statute barred from commencing any further proceedings in respect of the same alleged cause of action, and because hi…
[1974] 1 NZLR 180
[1974] 1 NZLR 180 Para 17

…The applicant relied upon the endorsement in Giannarelli v Wraith of an observation of McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187. At pages 559-600 Mason CJ said the following about the observation:…

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	Kendirjian v Lepore [2015] NSWCA 132
Hearing dates:	24 March 2015
Decision date:	21 May 2015
Before:	Macfarlan JA at [1]; Leeming JA at [45]; Bergin CJ in Eq at [54];
Decision:	Leave to appeal granted. Direct the applicant to file and serve his Notice of Appeal within seven days of the date of this judgment. Dismiss the appeal. Order the applicant to pay the respondents’ costs of the application for leave to appeal and the appeal.
Catchwords:	NEGLIGENCE – professional negligence – lawyers – duties and liabilities – advocate’s immunity – settlement of proceedings – whether alleged failure to advise in relation to settlement offer was a decision affecting the conduct of the case in Court – test in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 applied – leave granted – appeal dismissed
Cases Cited:	Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 Attard v James Legal Pty Ltd [2010] NSWCA 311 Bott v Carter [2012] NSWCA 89 Chamberlain v Ormsby [2005] NSWCA 454 Dansar Pty Ltd v Pagotto [2008] NSWSC 112 Donnellan v Woodland [2012] NSWCA 433 D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1 Ex parte Bucknell [1936] HCA 67; 56 CLR 221 Gett v Tabet [2009] NSWCA 76 Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 Rees v Sinclair [1974] 1 NZLR 180 Young v Hones [2014] NSWCA 337
Category:	Principal judgment
Parties:	David Kendirjian (Applicant) Eugene Lepore (First Respondent) Jim Conomos (Second Respondent)
Representation:	Counsel: B W Walker SC/D Aquilina (Applicant) B McManus (First Respondent) J Agius SC/A Hawkins (Second Respondent) Solicitors: Mason Black Lawyers (Applicant) Colin Biggers & Paisley (First Respondent) Carneys Lawyers (Second Respondent)
File Number(s):	CA 2014/173599
Decision under appeal	Court or tribunal: District Court Jurisdiction: New South Wales Citation: Kendirjian v Lepore [2014] NSWDC 66 Date of Decision: 16 May 2014 Before: P Taylor SC DCJ File Number(s): 2012/312681