Liprini v Hale

Case [2020] NSWCA 130


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Liprini v Hale [2020] NSWCA 130
Hearing dates: 6 March 2020
Date of orders: 3 July 2020
Decision date: 03 July 2020
Before: Macfarlan JA at [1];
McCallum JA at [116];
Emmett AJA at [143]
Decision:

Appeal dismissed with costs.

Catchwords:

NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm

NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party

NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum

NEGLIGENCE – defence of proportionate liability – CivilLiability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer

NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Family Provision Act 1982 (NSW)

Probate and Administration Act 1898 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16

Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18

Bartlett v Coomber [2008] NSWCA 100

Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10

Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135

McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4

Trajkovski v Simpson [2019] NSWCA 52

Category:Principal judgment
Parties: Kevin James Liprini (Appellant)
Sandra Neryl Hale (First Respondent)
John Eric McIntyre (Second Respondent)
Jeffrey Edmond O’Brien (Third Respondent)
Danny Kenneth Simpson (Fourth Respondent)
Michael John Sommerville (Fifth Respondent)
Representation:

Counsel:
D A Lloyd / L Beange (Appellant)
A Zahra (Respondents)

Solicitors:
ITC Law Pty Ltd (Appellant)
Sparke Helmore Lawyers (Respondents)
File Number(s): 2019/129821
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law
Citation:

[2019] NSWSC 355

Date of Decision:
04 April 2019
Before:
Simpson AJ
File Number(s):
2013/355003

HEADNOTE

[This headnote is not to be read as…

Continue reading Liprini v Hale

Sign in free to access the full text

Details
AGLC
Liprini v Hale [2020] NSWCA 130
Case
[2020] NSWCA 130
Decision Date

CaseChat Overview and Summary

The appellant, Ms. Liprini, brought proceedings against the respondent solicitors, Hale, alleging negligence in their conduct of her claim under the *Family Provision Act 1982* (NSW). Ms. Liprini contended that the solicitors' failure to commence proceedings for a Family Provision Act claim against an estate prior to a mediation constituted a breach of their duty of care, arguing that there was a relevant risk of harm arising from this failure. The dispute ultimately centred on whether the solicitors' actions or omissions led to Ms. Liprini suffering a loss.

The Court of Appeal was required to determine several key legal issues. These included whether the solicitors breached their duty of care by not commencing the Family Provision Act proceedings before mediation, and if so, whether this breach caused Ms. Liprini to suffer loss. Specifically, the court had to consider whether a readily enforceable settlement was reached at mediation and if Ms. Liprini had a realistic chance of recovering the full settlement sum but for the alleged negligence, taking into account the actions of a third party. The court also considered the defence of proportionate liability under section 35 of the *Civil Liability Act 2002* (NSW), and whether advocate's immunity applied to the solicitors' conduct, particularly in relation to the resolution of proceedings by court decision and the exercise of independent discretion by a registrar in entering consent orders.

The Court of Appeal dismissed the appeal. The reasoning of the court, though not detailed in the provided text, would have addressed the elements of negligence, including duty, breach, causation, and damages, in the context of the specific facts. The court likely found that either no breach occurred, or that the alleged breach did not cause the loss claimed, or that the solicitors were protected by advocate's immunity. The defence of proportionate liability may also have been considered and found to be inapplicable or unsuccessful.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with 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.