New South Wales
Court of Appeal
CITATION: Philip Walton trading as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86 HEARING DATE(S): 31 March 2008
JUDGMENT DATE:
7 May 2008JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Tobias JA at 3 DECISION: Appeal dismissed with costs CATCHWORDS: Negligence – Legal Practitioners – Solicitor – Failure to exercise reasonable care and skill – Immunity from suit – Work out of court concerning conduct of case – Damages – Whether losses sustained were reasonably foreseeable - Contract – Legal Practitioners – Solicitor – Breach of implied term of retainer – Whether loss or damage not unlikely to flow from breach LEGISLATION CITED: Corporations Act 2001 (Cth) s 459C, s 459E, s 459G, s 459H, s 459P and s 459S CASES CITED: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Burns v M.A.N. Automative (Aust) Pty Ltd (1986) 161 CLR 653
Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159
Chief Commissioner of Stamp Duties v Paliflex [1999] NSWSC 15
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Coulton v Holcombe (1986) 162 CLR 1
D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dansar Pty Ltd v Pagotto [2008] NSWSC 112
David Grant & Co Pty Ltd (Receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265
Giannarelli & Ors v Wraith & Ors (1988) 165 CLR 543
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Heenan v Di Sisto & Ors [2008] NSWCA 25
Kenny & Good v MGICA (1999) 199 CLR 413
Koufos v C Czarnikow Ltd [1969] 1 AC 350
Master Paving Pty Ltd v Heading Contractors Pty Ltd (1997) 15 ACLC 1025
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd (2002) NSWSC 411
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481; 60 ALR 68
Wenham v Ella (1972) 127 CLR 454
Wilson v Carter [2005] NSWSC 1351PARTIES: Phililp Walton trading as Pitcher Walton & Co
Efato Pty Limited (In Liquidation)FILE NUMBER(S): CA 40501/07 COUNSEL: A: G Curtin / Y Cachia
R: W G Muddle SC / L TyndallSOLICITORS: A: Colin Biggers & Paisley, Sydney
R: Dennis & Company, SydneyLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5656/05 LOWER COURT JUDICIAL OFFICER: Truss J LOWER COURT DATE OF DECISION: 25 July 2007
CA 40501/07
DC 5656/05Wednesday 7 May 2008BEAZLEY JA
GILES JA
TOBIAS JA
PHILIP WALTON t/as PITCHER WALTON & CO v EFATO PTY LTD
(IN LIQUIDATION)
Judgment
1 BEAZLEY JA: I agree with Tobias JA.
2 GILES JA: I agree with Tobias JA.
3 TOBIAS JA: This appeal arises out of proceedings instituted in the District Court by the respondent, previously known as Wardair Pty Ltd, against the appellant, its former solicitor, claiming…
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Details
- Case
- [2008] NSWCA 86
- Decision Date
CaseChat Overview and Summary
Philip Walton (the appellant) brought proceedings against Efato Pty Ltd (the respondent), a firm of solicitors, alleging negligence and breach of contract. The dispute concerned the conduct of legal proceedings by the respondent on behalf of the appellant. The appeal was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the respondent, as a legal practitioner, had failed to exercise reasonable care and skill in its conduct of the appellant's case, and whether any losses claimed by the appellant were reasonably foreseeable consequences of such a failure. Relatedly, the court considered whether the respondent had breached an implied term of its retainer and whether the alleged loss or damage was not unlikely to flow from any such breach. The question of solicitor's immunity from suit for work done out of court concerning the conduct of a case was also a central consideration.
The Court of Appeal, in dismissing the appeal, applied established principles of negligence and contract law concerning the duties owed by legal practitioners to their clients. The court found that the respondent had not breached its duty of care or the implied terms of its retainer. The reasoning focused on the foreseeability of the alleged losses and the scope of the solicitor's immunity. The court determined that the appellant had not established that the losses he claimed were reasonably foreseeable or that the respondent's conduct fell below the standard of reasonable care and skill expected of a solicitor.
The appeal was dismissed with costs, with the court finding in favour of the respondent.
The primary legal issues before the Court of Appeal were whether the respondent, as a legal practitioner, had failed to exercise reasonable care and skill in its conduct of the appellant's case, and whether any losses claimed by the appellant were reasonably foreseeable consequences of such a failure. Relatedly, the court considered whether the respondent had breached an implied term of its retainer and whether the alleged loss or damage was not unlikely to flow from any such breach. The question of solicitor's immunity from suit for work done out of court concerning the conduct of a case was also a central consideration.
The Court of Appeal, in dismissing the appeal, applied established principles of negligence and contract law concerning the duties owed by legal practitioners to their clients. The court found that the respondent had not breached its duty of care or the implied terms of its retainer. The reasoning focused on the foreseeability of the alleged losses and the scope of the solicitor's immunity. The court determined that the appellant had not established that the losses he claimed were reasonably foreseeable or that the respondent's conduct fell below the standard of reasonable care and skill expected of a solicitor.
The appeal was dismissed with costs, with the court finding in favour of the respondent.
Orders
Orders of the court
Appeal dismissed with costs (per Tobias JA with Beazley and Giles JJA agreeing)
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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