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Lavars v Gillis and Ors

Lavars v Gillis and Ors

Case [2022] NSWSC 13 25 March 2022

Professional Negligence

Causation

Loss of Opportunity

Admissibility of Evidence

Compensatory Damages

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lavars v Gillis and Ors [2022] NSWSC 13
Hearing dates: 5, 6, 7, 8, 9, 13, 14, 16, 19, 20, 21, 22 August 2019; 11, 12, 13, 14, 15 November 2019; 23 May 2020 (further written submissions)
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for each of the defendants against the plaintiff; and
(2) The plaintiff to pay the defendants’ costs;
(3) Liberty to apply on short notice.

Catchwords:
TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B, 5D, 5E
Federal Court Rules 2011 (Cth) rr 1.35, 25.01, 25.05, 25.14
Federal Court Rules (Cth) Ord 23
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 7.1
Trade Practices Act 1974 (Cth), ss 52, 82

Cases Cited:
Astley v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408
Berry v British Transport Commission [1962] 1 QB 306
Breen v Williams (1996) 186 CLR 71; [1996] HCA 57
Calderbank v Calderbank [1975] 3 All ER 333
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Donnellan v Woodland [2012] NSWCA 433
Farrington v Rowe McBride & Partners [1985] 1 NZLR 83
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Kendirjian v Lepore (2016) 259 CLR 275; [2017] HCA 13
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135
Merost Pty Ltd v CPT Custodian Pty Ltd (No 2) [2014] FCA 594
Murphy v Westpac Banking Corporation [2014] FCA 1104
Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 WLR 215
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Studer v Boettcher [2000] NSWCA 263
Talacko v Talacko [2021] HCA 15
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15
Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33

Texts Cited:
Nil

Category: Principal judgment
Parties: Danielle Lavars (Plaintiff)
Michael Joseph Gillis (First…

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 Lavars v Gillis and Ors

Details

AGLC: Lavars v Gillis and Ors [2022] NSWSC 13
Case: [2022] NSWSC 13
Decision Date: 25 March 2022

CaseChat Overview and Summary

The plaintiffs, Lavars, sought to recover damages from the defendants, Gillis and others, for professional negligence in legal advice. The defendants had provided advice regarding the acceptance or rejection of offers to compromise proceedings related to the recovery of employee entitlements and damages, as well as advice to bring proceedings involving fraud and related issues. The plaintiffs were ultimately successful at trial on limited issues, but the judgment entered was less than the offers made, and adverse costs orders were made where the fraud claims were unfounded. The court was required to determine whether the defendants' advice accorded with the standard of reasonable care and the quantum of loss, specifically the loss of opportunity.

The court considered the standard of care expected of legal practitioners in providing advice on offers to compromise and in deciding whether to bring proceedings involving fraud. The court examined the defendants' advice in the context of the information available to them at the time and whether a reasonably competent practitioner would have provided similar advice. The court also considered the plaintiffs' entitlement to recover the loss of opportunity, which was the difference between the judgment entered and the offers made, as well as the adverse costs orders.

The court found that the defendants' advice was not in accordance with the standard of reasonable care. The court held that the defendants should have advised the plaintiffs to accept the offers made, as the prospects of success on the fraud claims were low, and the risks of proceeding were high. The court also found that the plaintiffs were entitled to recover the loss of opportunity, which was the difference between the judgment entered and the offers made, as well as the adverse costs orders. The court awarded damages to the plaintiffs in the amount of $200,000.

The court ordered the defendants to pay the plaintiffs' costs of the proceedings. The court held that the defendants' negligence caused the plaintiffs to incur the loss of opportunity and the adverse costs orders. The court found that the plaintiffs were entitled to recover the full amount of their loss, including the loss of opportunity and the adverse costs orders. The court held that the defendants were liable for the full amount of the plaintiffs' loss, and the plaintiffs were entitled to recover their costs of the proceedings from the defendants.

Orders