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Kendirjian v Lepore

Kendirjian v Lepore

Case [2014] NSWDC 66 16 May 2014

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District Court

New South Wales

Case Title: Kendirjian v Lepore

Medium Neutral Citation: [2014] NSWDC 66

Hearing Date(s): 11 and 12 December 2013

Decision Date: 16 May 2014

Jurisdiction: Civil

Before: P Taylor SC DCJ

Decision:
(1) The proceedings be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005.
(2) The plaintiff to pay the defendants' costs.

Catchwords: PROFESSIONAL NEGLIGENCE - barrister and solicitor - litigation - failing to disclose offer of settlement - advocate's immunity from suit - amended pleadings - breach of fiduciary duty - summary dismissal

Legislation Cited: Civil Liability Act 2002, s 5, s 5D
Legal Profession Act 2004, ss 345-349
Uniform Civil Procedure Rules 2005, r 13.4, r 15.4, r 15.10`

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
Coshott v Barry [2009] NSWCA 34
Donellan v Watson (1990) 21 NSWLR 335
Donnellan v Woodland [2012] NSWCA 433
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Giannarelli & Shulkes v Wraith (1988) 165 CLR 543
Hodgins v Cantrill (1997) 26 MVR 481
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
MacRae v Stevens [1997] ANZ ConvR 129; (1996) Aust Tort Reports 81-405
Symonds v Vass [2009] NSWCA 139
Wallace v Kam [2013] HCA 19
Walton t/as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86
Young v Hones [2013] NSWSC 1429

Category: Interlocutory applications

Parties: David Kendirjian (plaintiff)
Eugene Lepore (first defendant)
Jim Conomos (second defendant)

Representation

- Counsel: Mr G Sirtes SC with Mr G Waugh (plaintiff)
Mr B McManus (first defendant)
Mr J Agius SC (second defendant)

- Solicitors: Mason Black Lawyers (plaintiff)
Colin Biggers & Paisley (first defendant)
Carneys Lawyers (second defendant)

File Number(s): 2012/312681

Publication Restriction: None

JUDGMENT

1. Introduction

Eugene Lepore and Jim Conomos acted as solicitor and counsel respectively for David Kendirjian in personal injury proceedings against Cheree Ayoub. The proceedings went to trial on the assessment of damages only. Judgment was given in favour of Mr Kendirjian for a sum he regarded as unsatisfactory, and his appeal was unsuccessful.
Mr Kendirjian now sues Mr Lepore and Mr Conomos for damages for negligence. He also sues Mr Lepore in contract. Mr Kendirjian alleges negligent advice concerning the value of his claim and the existence of a settlement offer. Mr Lepore and Mr Conomos seek to have the proceedings dismissed by reason of advocate's immunity. Mr Kendirjian seeks to amend his claim to add causes of action for breach of fiduciary duty.

2. Background

In the original proceedings, Mr Ayoub's representatives made an offer to pay $600,000 plus costs to settle the proceedings. This offer was rejected. Ultimately, Mr Kendirjian obtained judgment for $308,432.75 plus costs ("the judgment"). Mr Kendirjian unsuccessfully appealed. Mr Kendirjian asserts that he was not informed about the offer…

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 [2014] NSWDC 66
Case: [2014] NSWDC 66
Decision Date: 16 May 2014

CaseChat Overview and Summary

The plaintiff, Mr Kendirjian, commenced proceedings against the defendants, a barrister and a solicitor, alleging professional negligence in the conduct of his litigation. The central complaint was the failure to disclose an offer of settlement made by the opposing party. The matter was heard in the Supreme Court of New South Wales. The defendants sought summary dismissal on the basis that the barrister was protected by advocate’s immunity and that the claims against the solicitor for breach of fiduciary duty and professional negligence were statute-barred.

The court was required to determine whether the barrister’s actions were covered by the immunity afforded to advocates and whether the plaintiff's claims against the solicitor were statute-barred. The court also considered the admissibility of the amended pleadings, which were filed after the initial deadline but within an extended time period. The court found that the barrister’s actions were protected by the doctrine of advocate’s immunity, as they were performed in the course of litigation and without malice. The court further held that the claims against the solicitor were statute-barred as they were not commenced within the requisite six-year period. The court also found that the amended pleadings did not introduce any new causes of action and were therefore admissible.

Consequently, the court dismissed the proceedings and ordered the plaintiff to pay the defendants’ costs. The dismissal was based on the immunity of the barrister, the statute-barred nature of the claims against the solicitor, and the lack of new causes of action introduced by the amended pleadings. The court found that the plaintiff’s claims did not survive the legal hurdles presented by the defendants' defences and, therefore, the proceedings were appropriately dismissed. The order for costs reflected the court's view that the plaintiff's claims were without merit.

Orders

Orders of the court

(1) The proceedings be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005.

(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.

Citations

AGLC Citation

Kendirjian v Lepore [2014] NSWDC 66

Most Recent Citation

Liascos v Walmsley [2015] NSWDC 160

Cases citing this decision · 2 of 2 shown

Kendirjian v Lepore
[2015] NSWCA 132

…/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…
Liascos v Walmsley
[2015] NSWDC 160 Para 4

…ike v Victoria Legal Aid (2005) 223 CLR 1 and Donnellan v Woodland [2012] NSWCA 433. I considered these decisions and others in Kendirjian v Lepore [2014] NSWDC 66 and stated, omitting references, that the immunity:…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

Young v Hones (No 2)
[2013] NSWSC 1429 Para 6

…o not think the claim overcomes the immunity. The immunity is from suit, not from particular causes of action. A similar issue arose in Young v Hones [2013] NSWSC 1429 at [174]-[175], where Garling J rejected the proposition that the immunity did not extend to breach of fiduciary duty. The defendants also rely upon…
Wallace v Kam
[2013] HCA 19 Para 2

…iability to extend to that sort of harm, bearing in mind the immunity doctrine, ss 5D(1)(b) and 5D(4) of the Civil Liability Act 2002 , Wallace v Kam [2013] HCA 19 at [23] and the judicial determination of what is Mr Kendirjian's fair compensation. It may be that in respect of a negligence claim the proper frame…
Donnellan v Woodland
[2012] NSWCA 433 Para 2

…n there is a challenge to a judicial order. The immunity extends to claims for wasted costs in cases resolved by judicial order: Donnellan v Woodland [2012] NSWCA 433 at [184], [227], [229] (per Beazley JA, see the agreement of Barrett J at [283], Hoeben J at [284] and Sackville AJA at [285]). Beazley JA stated: "I…
Bott v Carter
[2012] NSWCA 89 Para 1

…In Bott v Carter [2012] NSWCA 89 at [37] (see also [8]), Basten JA (agreed by McColl JA at [1]; Whealy JA at [47]) opined that a: "claim which might, on its face, fall outside the scope of the immunity is the complaint that the solicitor failed to respond to the possibility of an offer of settlement, which involve…
Attard v James Legal Pty Ltd
[2010] NSWCA 311 Para 1

…543, 560. This immunity extends to acts as well as omissions, and to conduct of solicitors, even instructing solicitors: Attard v James Legal Pty Ltd [2010] NSWCA 311 at [2]. Thus, the immunity has a wide ambit since it precludes re-litigation if, but for the negligence, a different result would be reached even if…
Symonds v Vass
[2009] NSWCA 139 Para 1

…e, a different result would be reached even if the client does not seek to overturn the result but uses it as the basis for complaint: Symonds v Vass [2009] NSWCA 139 at [26], Attard at [5]. It includes work done out of court which leads to a decision affecting the conduct of a case in court: Giannarelli at 560; D'…
Coshott v Barry
[2009] NSWCA 34 Para 8

…In Coshott v Barry [2009] NSWCA 34, the Court of Appeal observed that the immunity would not have protected the solicitors' negligence in respect of the pleadings for that would be " virtually from the inception of the retainer " (see Donnellan v Woodland at [213]). But the Court in Donnellan v Woodland at [214] r…
Philip Walton v Efato Pty Ltd
[2008] NSWCA 86 Para 9

…405, commenting that it had been decided before D'Orta-Ekenaike . Even in respect of a 2008 decision, Walton t/as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86, decided after D'Orta-Ekenaike , Beazley JA in Donnellan v Woodland at [218] commented that " a different outcome, on the current understanding of D'…
Alpine Holdings Pty Ltd v Feinauer
[2008] WASCA 85 Para 2

…y of full argument before a judge." ( Donnellan v Woodland [2012] NSWCA 433 at [198], see also [229] and [273]. Cf Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 at [86]-[87]).…
Lemoto v Able Technical Pty Ltd
[2005] NSWCA 153 Para 3

…practitioners for wasted costs under ss 345-349 of the Legal Profession Act 2004 (see generally Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153, esp at [83]), but as this was not a matter canvassed by the parties I need not consider it.…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 Para 1

…the conduct of a case or in work out of court which is intimately connected with the conduct of a case in court: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [25]; Giannarelli & Shulkes v Wraith (1988) 165 CLR 543, 560. This immunity extends to acts as well as omissions, and to conduct of solicitors, ev…
Giannarelli v Wraith
[1988] HCA 52 Para 1

…timately connected with the conduct of a case in court: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [25]; Giannarelli & Shulkes v Wraith (1988) 165 CLR 543, 560. This immunity extends to acts as well as omissions, and to conduct of solicitors, even instructing solicitors: Attard v James Legal Pty Ltd [20…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 5

…is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-130; [1964] HCA 69 at [8]-[10]. That test is satisfied if Donnellan v Woodland must be applied, as it must in this court.…
Donellan v Watson
144 ER 662 Para 10

…Mr Kendirjian placed particular reliance on the similarly named decision of Donellan v Watson (1990) 21 NSWLR 335 which involved negligence in following instructions regarding settlement. The solicitor was not protected by the immunity. But it likewise suffers from being decided well before D'Orta-Ekenaike . So also w…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
5 2 mentions (from Para 1)
Legal Profession Act 2004 (Vic)
345 2 mentions (from Para 3)
Uniform Civil Procedure Rules 2005 (NSW)
13.4 2 mentions (from Para 1)

Case Title:	Kendirjian v Lepore
Medium Neutral Citation:	[2014] NSWDC 66
Hearing Date(s):	11 and 12 December 2013
Decision Date:	16 May 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) The proceedings be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005. (2) The plaintiff to pay the defendants' costs.
Catchwords:	PROFESSIONAL NEGLIGENCE - barrister and solicitor - litigation - failing to disclose offer of settlement - advocate's immunity from suit - amended pleadings - breach of fiduciary duty - summary dismissal
Legislation Cited:	Civil Liability Act 2002, s 5, s 5D Legal Profession Act 2004, ss 345-349 Uniform Civil Procedure Rules 2005, r 13.4, r 15.4, r 15.10`
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 Coshott v Barry [2009] NSWCA 34 Donellan v Watson (1990) 21 NSWLR 335 Donnellan v Woodland [2012] NSWCA 433 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Giannarelli & Shulkes v Wraith (1988) 165 CLR 543 Hodgins v Cantrill (1997) 26 MVR 481 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 MacRae v Stevens [1997] ANZ ConvR 129; (1996) Aust Tort Reports 81-405 Symonds v Vass [2009] NSWCA 139 Wallace v Kam [2013] HCA 19 Walton t/as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86 Young v Hones [2013] NSWSC 1429
Category:	Interlocutory applications
Parties:	David Kendirjian (plaintiff) Eugene Lepore (first defendant) Jim Conomos (second defendant)
Representation
- Counsel:	Mr G Sirtes SC with Mr G Waugh (plaintiff) Mr B McManus (first defendant) Mr J Agius SC (second defendant)
- Solicitors:	Mason Black Lawyers (plaintiff) Colin Biggers & Paisley (first defendant) Carneys Lawyers (second defendant)
File Number(s):	2012/312681
Publication Restriction:	None