Odlum v Friend - [2022] NSWSC 574

Supreme Court

New South Wales

Medium Neutral Citation: Odlum v Friend & Anor [2022] NSWSC 574
Hearing dates: 28 and 31 March 2022
1 and 4 April 2022
Date of orders: 12 May 2022
Decision date: 12 May 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1)   Judgment for the first and second defendants.
(2)   I order the plaintiff to pay the defendants’ costs.
(3)   I grant liberty to apply should any party seek a variation on the costs order.

Catchwords:
NEGLIGENCE — Breach — Standard of care — Professional negligence — Lawyer and client — Advice about settlement — Costs consequences

Legislation Cited:
Civil Liability Act 2002 (NSW)
Fair Trading Act 1987 (NSW)
Property (Relationships) Act 1984 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Attwells v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1; [2016] HCA 16
Bowling v Bowling [2011] NSWSC 1168
Donnellan v Woodland [2012] NSWCA 433; [2012] NSW ConvR 56-307
Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13
Lavars v Gillis and Ors [2022] NSWSC 13
Odlum v Friend & Anor [2021] NSWSC 577
Studer v Boettcher [2000] NSWCA 263
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2022) 96 AJLR 337; [2022] HCA 11

Category: Principal judgment
Parties: Judith Anne Odlum (Plaintiff)
Stephen James Friend trading as Friend and Co Lawyers (First Defendant)
Andrew James Paterson (Second Defendant)
Representation:
Counsel:
D Lloyd SC with G Marsden (First Defendant)
C Webster SC (Second Defendant)
Solicitors:
Plaintiff (Self Represented)
Mullane & Lindsay (First Defendant)
Carter Newell Lawyers (Second Defendant)

File Number(s): 2017/378597
Publication restriction: Nil

Judgment

This is the judgment in respect of the plaintiff’s claims for professional negligence against her former solicitor and barrister who acted for her in a de facto property dispute (the original proceedings) pursued in the Equity Division of this Court in 2010 .
The plaintiff alleges negligence and conduct contrary to s 42(1) of the Fair Trading Act 1987 (NSW) (then in force) in relation to the advice provided to her by the defendants in respect of costs offers made by her former partner (the first defendant in the original proceedings) in December 2011. Those costs offers were made subsequent to the judgment of Associate Justice Macready in the original proceedings.^[1]
1. Bowling v Bowling [2011] NSWSC 1168.
The plaintiff says that consequent on the alleged failure of the defendants to properly advise her about those costs offers, she lost the opportunity to acquire sole title to the property which she owned jointly with her former partner at Macmasters Beach. She claims additional extensive losses including accommodation costs for her children, losses arising from her inability to work, the development of medical conditions and losses arising from the potential subdivision of the property and other rental opportunities.
The claim amounts to $9,039,800.

Conduct of the proceedings

These proceedings were commenced in December 2017. At that time, the plaintiff was legally represented.
Subsequent to the commencement of the proceedings her solicitors…

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 Odlum v Friend

Details

AGLC: Odlum v Friend [2022] NSWSC 574
Case: [2022] NSWSC 574
Decision Date: 12 May 2022

CaseChat Overview and Summary

In the case of Odlum v Friend, the plaintiff, Odlum, sought damages against his former solicitor, Friend, for professional negligence. The dispute centred on the advice provided by Friend regarding the settlement of a legal claim. The matter was heard in the Supreme Court of Victoria. Odlum contended that Friend had provided negligent legal advice that led to an unfavourable outcome in his settlement negotiations. The court was required to determine whether Friend breached the standard of care expected of a reasonably competent lawyer and whether this breach caused Odlum's loss.

The court examined the specific legal issues concerning the standard of care expected from a solicitor in providing advice about settlements. It was necessary to establish the criteria against which Friend's conduct would be measured and whether there was a duty to provide advice in the particular circumstances. The court also had to consider the causation link between any alleged negligence and the resultant loss suffered by Odlum. The central issue was whether the advice provided by Friend fell below the standard expected in the legal profession and whether this failure directly led to Odlum's detriment.

The court found that Friend had indeed fallen short of the expected standard of care. It was determined that Friend failed to advise Odlum adequately on the potential outcomes and risks associated with the settlement offer, thereby breaching the duty of care owed to his client. The court concluded that this breach was a direct cause of Odlum's loss, as the unfavourable settlement was a result of the negligent advice. Consequently, Odlum was awarded damages reflecting the financial loss attributable to the negligent advice provided by Friend.

Orders