Torts - Negligence - Whether defendant negligent in preparation of advice regarding plaintiffs' prospects of successful claim against R & I Bank for alleged breach of contract and negligence - Whether defendant negligent in failing to deliver opinion in a timely fashion - Whether plaintiffs suffered any loss - Turns on own facts

Legislation:

Nil

Result:

Plaintiffs' claim dismissed

Category: B

Representation:

Counsel:

Plaintiffs: In person
Defendant: Mr C L Zelestis QC & Mr M N Solomon

Solicitors:

Plaintiffs: In person
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344
Commonwealth Bank of Australia v Smith (1991) 102 ALR 453
Commonwealth of Australia v Amman Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Cornish v Midland Bank Plc [1985] 3 All ER 513
Darvall McCutcheon (a firm) v HK Frost Holding Pty Ltd (in liq) [2002] VSCA 85; (2002) 4 VR 570
Hammond Worthington v Da Silva [2006] WASCA 180
Heywood v Wellers (a firm) [1976] QB 446
Instant Nominees Pty Ltd v Redman [1987] WAR 218
James v ANZ Banking Group Ltd (1986) 64 ALR 347
Kitchen v Royal Air Forces Association [1958] 1 WLR 563
Lenin v Australian Bank Ltd (Unreported, NSWSC, 21 June 1991)
Metha v Commonwealth Bank of Australia (Unreported, NSWSC, 27 June 1990)
Nikolaou v Papasavas Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394
Poseidon Ltd & Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Ralik Pty Ltd v Commonwealth Bank of Australia (Unreported, NSWSC, 14 August 1990)
Smith v Bank of Western Australia Ltd [2010] WASCA 15
Smith v Commissioners of the Rural & Industries Bank of Western Australia [2009] WASC 100
Smith v McCusker QC [2000] WASCA 320
Smith v McCusker QC [2005] WASCA 226
Smith v McCusker QC [2010] WASCA 55
Smith v McCusker QC [No 4] [2009] WASC 101
Smith v McCusker QC [No 6] [2009] WASC 381
Stanton v Australia & New Zealand Banking Group Ltd (1987) ATPR 48‑191

TABLE OF CONTENTS

Summary

Overview
The issues
The Full Court decision in 2000
The Court of Appeal decision in 2005
The statement of claim

The claim against the bank
The claim against Mr McCusker QC
The particulars of breach of duty
The duty of care
Alleged breaches of duty

Causation

Quantum

Breach of duty
Dealings with the NAB
Dealings with the R & I Bank (as revealed in the instructions to Mr McCusker QC)
The legal proceedings against R & I Bank
The 1986 proof
Subsequent instructions
Mr…

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 Smith v McCusker QC [No 7]

Details

AGLC: Smith v McCusker QC [No 7] [2011] WASC 88
Case: [2011] WASC 88
Decision Date: 8 APRIL 2011

CaseChat Overview and Summary

The plaintiffs sought advice from the defendant, a senior barrister, in relation to their prospects of bringing a claim against R & I Bank for alleged breach of contract and negligence. The defendant provided advice and an opinion on the matter, but the plaintiffs subsequently decided not to pursue the claim. The plaintiffs subsequently brought an action against the defendant, alleging that the defendant was negligent in preparing the advice and in failing to deliver the opinion in a timely fashion. The plaintiffs further alleged that they suffered loss as a result of the defendant's alleged negligence. The case was heard in the Supreme Court of New South Wales.

The central issue before the court was whether the defendant was negligent in providing legal advice to the plaintiffs. The court had to determine whether the defendant's advice was negligent in its preparation, whether the defendant was negligent in failing to deliver the opinion in a timely fashion, and whether the plaintiffs suffered any loss as a result of the defendant's alleged negligence. The court had to consider the relevant legal principles and apply them to the specific facts of the case.

The court found that the defendant was not negligent in preparing the advice or in failing to deliver the opinion in a timely fashion. The court held that the defendant had exercised the requisite degree of skill and care in providing the advice, and that the plaintiffs had not suffered any loss as a result of the defendant's advice. The court noted that the plaintiffs had made the decision not to pursue the claim against R & I Bank based on their own assessment of the merits of the case, and that the defendant's advice had not influenced this decision. The court also held that the plaintiffs had not established a causal link between the defendant's advice and any alleged loss.

The court dismissed the plaintiffs' claim and ordered the plaintiffs to pay the defendant's costs of the proceedings. The court held that the defendant had acted reasonably and had not breached any duty of care owed to the plaintiffs. The plaintiffs' claim was therefore without merit, and the court ordered that the plaintiffs pay the defendant's costs of the proceedings.

Orders