Kolavo v Pitsikas

[2003] NSWCA 59

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Kolavo v Pitsikas (t/as Comino and Pitsikas) & Anor [2003]  NSWCA 59

FILE NUMBER(S):
41033/01

HEARING DATE(S):               17 February 2003

JUDGMENT DATE: 01/04/2003

PARTIES:
Eva Evdokia Kolavo (Appellant)
Spero Pitsikas (t/as Comino and Piksikas) (First Respondent)
James W Conomos (Second Respondent)

JUDGMENT OF:       Stein JA Santow JA Cripps AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 6312/99

LOWER COURT JUDICIAL OFFICER:     Gamble ADCJ

COUNSEL:
Mr M J Neill QC/Ms G M Preston (Appellant)
Mr T E F Hughes QC/Mr T D F Hughes (First/Second Respondents)

SOLICITORS:
Graham Molloy & Associates (Appellant)
Henry Davis York (First Respondent)
Moray & Agnew (Second Respondent)

CATCHWORDS:
LEGAL PRACTITIONERS - professional liability - duty of care owed by a professional legal advisor to client - negligent provision of advice - legal practitioners must exercise reasonable care and skill in provision of professional advice - tortious duty of care identical to contractual duty - whether solicitor can rely on the expertise of a barrister - whether a reasonably competent lawyer could have given any advice other than that the appellant's case was hopeless - whether failure to advise that case hopeless constitutes a breach of duty - whether District Court had jurisdiction to determine claim for equitable relief - whether trial judge erred in refusing to allow leave to amend claim for equitable relief - District Court Act
s134(1)(h) - whether trial judge erred in refusal to exercise discretion to allow leave to amend claim for equitable relief - D

LEGISLATION CITED:
District Court Act 1973, s 134(1)(h)

DECISION:
Appeal allowed and orders of Gamble ADCJ set aside. 

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41033/01
DC 6312/99

STEIN JA
SANTOW JA
CRIPPS AJA

Tuesday, 1 April 2003

Eva Evdokia KOLAVO v Spero PITSIKAS (trading as Comino and Pitsikas)  & Anor

Facts:

The appellant retained a solicitor (the first respondent) and a barrister (the second respondent) to advise her regarding the pursuit of legal proceedings against two companies (a travel agent and a tour operator) involved in the provision of a package tour holiday on which she was injured. The appellant was advised that she had a cause of action in negligence against both companies. Reliant upon this advice legal proceedings were instituted on her behalf.

At trial it became apparent that the case was a hopeless one in that no cause of action existed as against either company. The appellant then brought an action against the first and second respondent in negligence on the grounds that they failed to advise her that she had no cause of action against either of the parties against whom she commenced proceedings. She sought equitable relief in the form of a declaration that the respondents indemnify her for costs payable to the two companies as a result of the failed litigation.

The trial judge held that neither respondent was liable to indemnify the appellant for the costs incurred as a result of the…