Kendirjian v Lepore - [2019] NSWDC 43

District Court

New South Wales

Medium Neutral Citation: Kendirjian v Lepore [2019] NSWDC 43
Hearing dates: 18 February 2019 – 22 February 2019
Date of orders: 06 March 2019
Decision date: 06 March 2019
Jurisdiction: Civil
Before: Weber SC DCJ
Decision:
(1) Verdict and Judgment for the defendants
(2) The plaintiff to pay the defendants’ costs
Catchwords: TORTS– negligence – whether solicitor and barrister negligent in settlement negotiations – relevance of contemporaneous file notes prepared by solicitor – adverse credit findings against plaintiff
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1
Boateng v Dharamdas [2016] NSWCA 183
Jones v Dunkel (1959) 101 CLR 298
Kendirjian v Ayoub [2008] NSWCA 194
Kendirjian v Lepore (2017) 259 CLR 275
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Societe d’ Avances Commerciales v Merchants’ Marine Insurance Co. (1924) 20 Ll. L. Rep 140
Category: Principal judgment
Parties: David Kendirjian (Plaintiff)
Eugene Lepore (First Defendant)
Jim Conomos (Second Defendant)
Representation: Plaintiff: Mr D. Kendirjian (in person)
First Defendant: Mr C. D. Wood
Second Defendant: Mr A. Carney
First Defendant: Yeldham Price O’Brien Lusk
Second Defendant: Carneys Lawyers

File Number(s): 2012/00312681-001
Publication restriction: None

Judgment

Background

This matter comes before the Court via a route which I think can be fairly described as having more than the usual share of twists and turns. By way of summary, that route can be described as follows.
On 21 November 1999, the plaintiff suffered injuries as a consequence of a motor vehicle accident. Subsequently, in 2004, the plaintiff commenced proceedings in this Court (No. 29 of 2004) (the “Personal Injuries Proceedings”).
The Personal Injuries Proceedings were called on for hearing on 30 August 2006 before Delaney DCJ.
On 13 October 2006, His Honour handed down judgment in the plaintiff’s favour; awarding him the sum of $308,432.75 plus costs.
Being dissatisfied with the award of damages, the plaintiff instructed his solicitors to lodge an appeal against the orders of Delaney DCJ, to the New South Wales Court of Appeal. That appeal (in proceedings No. 40697 of 2006) was dismissed with costs. The principal judgment of the New South Wales Court of Appeal is dated 14 August 2008 (Kendirjian v Ayoub [2008] NSWCA 194).
In 2012, the plaintiff commenced these proceedings against the solicitor who conducted both the Personal Injuries Proceedings and the appeal, and against the barrister who was briefed in both cases. The solicitor, Mr Lepore, is the first defendant and the barrister, Mr Conomos, is the second defendant.
By the Amended Statement of Claim at paragraph 8, the plaintiff alleges that on the morning of the hearing before Delaney DCJ, the defendant in that case offered to settle the Personal Injuries Proceedings for the sum of $600,000 plus costs. The pleading goes on to allege that neither the plaintiff’s solicitor nor his barrister advised the plaintiff of the…

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 [2019] NSWDC 43
Case: [2019] NSWDC 43
Decision Date: 06 March 2019

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiff sought damages for negligence against two defendants, a solicitor and a barrister, in relation to settlement negotiations for a motor accident claim. The plaintiff alleged that the defendants' conduct in negotiations amounted to a breach of duty, causing the plaintiff to accept a settlement offer that was significantly lower than the likely outcome at trial. The case hinged on the quality of advice provided and the reliance placed on contemporaneous file notes prepared by the solicitor.

The primary legal issue before the court was whether the defendants owed a duty of care to the plaintiff during settlement negotiations and, if so, whether they breached this duty by providing negligent advice. The court also had to consider the weight to be given to the contemporaneous file notes, particularly in light of adverse credit findings against the plaintiff. The court examined the standard of care expected from professionals involved in settlement negotiations and the implications of the plaintiff's credit history on the assessment of damages.

The court held that the defendants did not owe a duty of care to the plaintiff in the context of settlement negotiations. In reaching this conclusion, the court relied on established principles that typically no such duty exists when parties negotiate settlements. The court further found that even if a duty had existed, the defendants' advice was not negligent given the information available to them at the time. The contemporaneous file notes were deemed unreliable due to the plaintiff's adverse credit findings, which undermined the plaintiff's claim for damages. Consequently, the court found in favour of the defendants and ordered that the plaintiff pay the defendants' costs.

Orders

Orders of the court

(1) Verdict and Judgment for the defendants

(2) The plaintiff to pay the defendants’ costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kendirjian v Lepore [2019] NSWDC 43
Hearing dates:	18 February 2019 – 22 February 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Civil
Before:	Weber SC DCJ
Decision:	(1) Verdict and Judgment for the defendants (2) The plaintiff to pay the defendants’ costs
Catchwords:	TORTS– negligence – whether solicitor and barrister negligent in settlement negotiations – relevance of contemporaneous file notes prepared by solicitor – adverse credit findings against plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 Boateng v Dharamdas [2016] NSWCA 183 Jones v Dunkel (1959) 101 CLR 298 Kendirjian v Ayoub [2008] NSWCA 194 Kendirjian v Lepore (2017) 259 CLR 275 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Societe d’ Avances Commerciales v Merchants’ Marine Insurance Co. (1924) 20 Ll. L. Rep 140
Category:	Principal judgment
Parties:	David Kendirjian (Plaintiff) Eugene Lepore (First Defendant) Jim Conomos (Second Defendant)
Representation:	Plaintiff: Mr D. Kendirjian (in person) First Defendant: Mr C. D. Wood Second Defendant: Mr A. Carney First Defendant: Yeldham Price O’Brien Lusk Second Defendant: Carneys Lawyers
File Number(s):	2012/00312681-001
Publication restriction:	None