Lee v Brand - [2003] NSWCA 198

CITATION: Lee v. Brand & Anor. [2003] NSWCA 198 revised - 28/07/2003

HEARING DATE(S): 3 July 2003

JUDGMENT DATE:
24 July 2003

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Tobias JA at 78

DECISION: 1. Mr. Lee's appeal against Mr. Brand allowed with costs. 2. Mr. Brand to have Suitors Fund certificate if otherwise entitled. 3. Mr. Brand's orders against Mr. Lee set aside, and in lieu thereof Mr. Brand's cross-claim against Mr. Lee dismissed, and Mr. Brand to pay so much of Mr. Lee's costs of the proceedings as are not referable purely to Mr. Sahota's claim against Mr. Lee. 4. Mr. Brand's cross-appeal dismissed with costs. 5. Mr. Lee's appeal against Mr. Sahota allowed to the extent of substituting for the quantified damages a judgment for damages to be assessed, and matter returned to the District Court for that assessment. 6. Each party to that appeal to bear its own costs; and Mr. Sahota to have a Suitors Fund certificate if otherwise entitled. 7. Mr. Lee to pay so much of Mr. Sahota's costs of the proceedings as are not recovered from Mr. Brand. 8. Mr. Lee's application to put on a cross-claim dismissed with costs.

CATCHWORDS: LEGAL PROFESSION - Solicitors - Solicitor acting for lender - Whether also acting for guarantor - DAMAGES - Lender recovers judgment against guarantor - Lender also sues solicitor - Whether damages suffered - When and how damages against solicitor assessed.

CASES CITED: Baldry v. Jackson [1976] 2 NSWLR 415
Hill v. Van Erp (1997) 188 CLR 159

PARTIES :
Alexander Lee - appellant
Robert John Brand - first respondent
Narinder Singh Sahota - second respondent

FILE NUMBER(S): CA 41060/02

COUNSEL: Mr. D. Davies SC with Andrew Colefax for the appellant
Mr. D.E. Baram for the first respondent
Mr. A.G. Melick SC for second respondent

SOLICITORS: Phillips Fox for appellant
Kosmin & Associates, Double Bay for first respondent
Helliars, Parramatta for second respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC712/98 and DC6815/00

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

CA 41060/02
DC 712/98
DC 6815/00

SHELLER JA
HODGSON JA
TOBIAS JA
Thursday 24 July 2003

LEE V. BRAND & ANOR.

Judgment

1 SHELLER JA: I agree with Hodgson JA.

2 HODGSON JA: On 18 October 2002, Sorby DCJ made orders disposing of proceedings brought by the second respondent Narinder Singh Sahota against the first respondent Robert John Brand and the appellant Alexander Lee, in which Mr. Brand had put on a cross-claim against Mr. Sahota and Mr. Lee. In substance, those orders were:

3 Mr. Lee appeals…

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 Lee v Brand

Details

AGLC: Lee v Brand [2003] NSWCA 198
Case: [2003] NSWCA 198
Decision Date: 24 July 2003

CaseChat Overview and Summary

This matter concerned an appeal and cross-appeal before the New South Wales Court of Appeal, constituted by Sheller, Hodgson and Tobias JJA. The primary dispute involved a lender, Mr. Brand, who had obtained judgment against a guarantor, Mr. Sahota, and subsequently sued his solicitor, Mr. Lee, for damages. Mr. Lee, in turn, had sought to cross-claim against Mr. Brand.

The central legal issues before the Court of Appeal were whether Mr. Lee, as solicitor for Mr. Brand in a loan transaction, had also acted for the guarantor, Mr. Sahota, and if so, whether Mr. Brand had suffered actionable damage as a result of Mr. Lee's conduct. The court was also required to determine the appropriate assessment of damages against a solicitor in such circumstances.

The Court of Appeal reasoned that Mr. Lee had not acted for both parties in the transaction, and therefore, Mr. Brand had not suffered damages as a result of any breach of duty by Mr. Lee. The court allowed Mr. Lee's appeal against Mr. Brand, setting aside the orders made against Mr. Lee and dismissing Mr. Brand's cross-claim against Mr. Lee. Mr. Lee's appeal against Mr. Sahota was allowed to the extent of substituting a judgment for damages to be assessed, with the matter remitted to the District Court for that assessment. Mr. Lee's application to pursue a cross-claim was dismissed.

Orders

Orders of the court

1. Mr. Lee's appeal against Mr. Brand allowed with costs. 2. Mr. Brand to have Suitors Fund certificate if otherwise entitled. 3. Mr. Brand's orders against Mr. Lee set aside, and in lieu thereof Mr. Brand's cross-claim against Mr. Lee dismissed, and Mr. Brand to pay so much of Mr. Lee's costs of the proceedings as are not referable purely to Mr. Sahota's claim against Mr. Lee. 4. Mr. Brand's cross-appeal dismissed with costs. 5. Mr. Lee's appeal against Mr. Sahota allowed to the extent of substituting for the quantified damages a judgment for damages to be assessed, and matter returned to the District Court for that assessment. 6. Each party to that appeal to bear its own costs; and Mr. Sahota to have a Suitors Fund certificate if otherwise entitled. 7. Mr. Lee to pay so much of Mr. Sahota's costs of the proceedings as are not recovered from Mr. Brand. 8. Mr. Lee's application to put on a cross-claim dismissed with costs.

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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CITATION:	Lee v. Brand & Anor. [2003] NSWCA 198 revised - 28/07/2003
HEARING DATE(S):	3 July 2003
JUDGMENT DATE:	24 July 2003
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Tobias JA at 78
DECISION:	1. Mr. Lee's appeal against Mr. Brand allowed with costs. 2. Mr. Brand to have Suitors Fund certificate if otherwise entitled. 3. Mr. Brand's orders against Mr. Lee set aside, and in lieu thereof Mr. Brand's cross-claim against Mr. Lee dismissed, and Mr. Brand to pay so much of Mr. Lee's costs of the proceedings as are not referable purely to Mr. Sahota's claim against Mr. Lee. 4. Mr. Brand's cross-appeal dismissed with costs. 5. Mr. Lee's appeal against Mr. Sahota allowed to the extent of substituting for the quantified damages a judgment for damages to be assessed, and matter returned to the District Court for that assessment. 6. Each party to that appeal to bear its own costs; and Mr. Sahota to have a Suitors Fund certificate if otherwise entitled. 7. Mr. Lee to pay so much of Mr. Sahota's costs of the proceedings as are not recovered from Mr. Brand. 8. Mr. Lee's application to put on a cross-claim dismissed with costs.
CATCHWORDS:	LEGAL PROFESSION - Solicitors - Solicitor acting for lender - Whether also acting for guarantor - DAMAGES - Lender recovers judgment against guarantor - Lender also sues solicitor - Whether damages suffered - When and how damages against solicitor assessed.
CASES CITED:	Baldry v. Jackson [1976] 2 NSWLR 415 Hill v. Van Erp (1997) 188 CLR 159
PARTIES :	Alexander Lee - appellant Robert John Brand - first respondent Narinder Singh Sahota - second respondent
FILE NUMBER(S):	CA 41060/02
COUNSEL:	Mr. D. Davies SC with Andrew Colefax for the appellant Mr. D.E. Baram for the first respondent Mr. A.G. Melick SC for second respondent
SOLICITORS:	Phillips Fox for appellant Kosmin & Associates, Double Bay for first respondent Helliars, Parramatta for second respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC712/98 and DC6815/00
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ