Martin v Cohen

Case [2014] NSWDC 145

District Court


New South Wales

Medium Neutral Citation: Martin v Cohen [2014] NSWDC 145
Hearing dates:23, 24, 25, 28, 29, 30, 31 July, 1 and 4 August 2014
Decision date: 11 September 2014
Jurisdiction:Civil
Before: Levy SC DCJ
Decision:

1.Verdict and judgment for the defendant;

2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned after the time for an appeal has expired;

4.Liberty to apply on 7 days notice if further orders are required.

Catchwords: TORTS - alleged professional negligence - legal practitioner - professional services provided by solicitor - resolution of factual dispute concerning scope of retainer -whether coercion to settle underlying Supreme Court proceedings - whether breach of fiduciary duty - whether breach of duty of care concerning advice and implementation of instructions including in the course of advocacy - whether advocate's immunity established - whether causation of claimed losses established; DAMAGES - assessment of claimed losses
Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5E, s 16
Civil Procedure Act 2005, s 100
Legal Profession Act 2004, s 347
Property (Relationship) Act 1984, s 20
Solicitors Rules, r 1 (The Law Society of New South Wales Professional Conduct and Practice Rules Legal Profession Act 1987)
Cases Cited: Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46
Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222.
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Crédit Lyonnais SA v Russell Jones and Walker [2003] Lloyd's Rep PN 7
Donnellan v Woodland [2012] NSWCA 433
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Jennings v Zihali-Kiss (1972) SASR 493
Lucantonio v Klienert [2009] NSWSC 853
Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449; (1997) 144 ALR 729
Marshall v Prescott (No 3) [2013] NSWSC 1949
Permanent Trustee Australia Ltd v Boulton; Permanent Trustee Australia Ltd v Lynjoe Pty Ltd [1994] 33 NSWLR 735;
Stillman v Rushbourne [2014] NSWSC 730
Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182
Studer v Boettcher [2000] NSWCA 263
Trust Company of Australia v Perpetual Trustee WA Limited (1997) 42 NSWLR 237
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Texts Cited: Thomson Reuters Laws of Australia, (accessed as at 20 August 2014): 27 Professional Liability, 27.1 Fiduciary Duties [27.1.230]
Category:Principal judgment
Parties: Noel Charles Martin (Plaintiff)
Andrew John Cohen (Defendant)
Representation: Plaintiff in person
Mr D Priestley (Defendant)
Plaintiff in person
Colin Biggers & Paisley (Defendant)
File Number(s):2012/47950
Publication restriction:None

Judgment

Table of Contents

Nature of case

[1] - [7]

Motion to amend the defence

[8] - [10]

Motion by plaintiff seeking reliance upon documents

[11] - [13]

Pleadings

[14] - [22]

Evidence overview

[23]…

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Details
AGLC
Martin v Cohen [2014] NSWDC 145
Case
[2014] NSWDC 145
Decision Date

CaseChat Overview and Summary

The case of Martin v Cohen involved a claim for professional negligence against a legal practitioner by a former client. The plaintiff alleged that the defendant, who had provided legal services, had breached his duty of care and fiduciary duty during the course of advocacy in Supreme Court proceedings. The plaintiff claimed losses as a result of these alleged breaches.

The central legal issues before the court were whether the defendant had coerced the plaintiff into settling the underlying Supreme Court proceedings, breached his fiduciary duty, and breached his duty of care concerning advice and implementation of instructions. Additionally, the court had to determine whether the advocate's immunity was established and whether causation of the claimed losses was proven. The court needed to assess the quantum of damages claimed by the plaintiff.

The court found that the defendant had not coerced the plaintiff into settling the Supreme Court proceedings and had not breached his fiduciary duty or duty of care. The court determined that the advocate's immunity applied, and the causation of the claimed losses was not established. Consequently, the court entered a verdict and judgment in favour of the defendant. The plaintiff was ordered to pay the defendant's costs on the ordinary basis unless otherwise ordered. The exhibits were to be returned after the time for an appeal had expired, and the plaintiff was granted liberty to apply for further orders if needed.

Orders

Orders of the court

1.Verdict and judgment for the defendant;

2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned after the time for an appeal has expired;

4.Liberty to apply on 7 days notice if further orders are required.

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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