Trajkovski v Simpson

Case [2019] NSWCA 52

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Trajkovski v Simpson [2019] NSWCA 52
Hearing dates: 1 February 2019
Date of orders: 26 March 2019
Decision date: 26 March 2019
Before: Basten JA and Sackville AJA at [1];
Brereton JA at [58]
Decision:

(1)   Appeal allowed.
(2)   Judgment of trial judge set aside.
(3)   In lieu thereof, judgment that defendants pay plaintiff $814,445.25 (inclusive of interest to date of trial judge’s judgment).
(4)   Respondents to pay the appellant’s costs at first instance and on appeal.

Catchwords:

NEGLIGENCE – professional negligence – legal practitioners – duty of care where solicitor represented husband in family law proceedings – where solicitor retained by husband to act on sale of jointly held property – whether there was a solicitor-client relationship between the solicitors and the wife, and therefore whether they owed her a duty of care

 

AGENCY – authority – ostensible authority – whether husband had wife’s actual or ostensible authority to direct payment of proceeds of sale

  TORT – negligence – concurrent liability – whether the husband was a concurrent wrongdoer, such as to reduce the solicitors’ liability
Legislation Cited: Civil Liability Act 2002 (NSW) ss 5D, 5O(1), 34(1)(a), 34(2), 35(1)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9
Legal Profession Act 1987 (NSW) s 57B
Legal Profession Act 2004 (NSW) s 309(1)
Legal Profession Uniform Law (NSW) s 174
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 11
Revised Professional Conduct and Practice Rules 1995 (NSW), rr 9.2, 9.3, 45
Trade Practices Act 1974 (Cth) s 51AB
Cases Cited: Al-Kandari v J R Brown & Co [1988] QB 665 (CA)
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Bebonis v Angelos (2003) 56 NSWLR 127; [2003] NSWCA
Craven v Official Trustee (2003) 127 FCR 217; [2003] FCAFC 26
Davies v Littlejohn (1923) 34 CLR 174; [1923] HCA 64
Ellison v Sandini Pty Ltd (2018) 354 ALR 484; [2018] FCAFC 44
Farrer v Copley Singletons [1997] EWCA Civ 2127
Feldman v GNM Australia Ltd [2017] NSWCA 107
Harris v Walker (1968) 14 FLR 167
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15
Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374
Horsfall v Haywards [1999] PNLR 583
Hunt & Hunt Lawyers v Mitchell Morgan Nominees (2013) 247 CLR 613; [2013] HCA 10
Jones v Daniel (2004) 141 FCR 148; [2004] FCAFC 278
Kowalczuk v Accom Finance (2008) 77 NSWLR 205; [2008] NSWCA 343
Lysaght v Edwards (1876) 2 Ch D 499
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd as Trustee for the G & M Geldard Family Trust [2013] 1 Qd R 319; [2012] QCA 315
Midland Bank v Hett, Stubbs and Kemp [1979] Ch 384
Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4
Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217; [2003] FCAFC 26
Pilkington v Wood…

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AGLC
Trajkovski v Simpson [2019] NSWCA 52
Case
[2019] NSWCA 52
Decision Date

CaseChat Overview and Summary

The appeal in *Trajkovski v Simpson* concerned a claim of professional negligence brought by the plaintiff, Ms. Trajkovski, against the defendant solicitors. The dispute arose from the sale of a jointly owned property during family law proceedings between Ms. Trajkovski and her husband. The solicitors had been retained by the husband to act on the sale of the property, and Ms. Trajkovski alleged that the solicitors owed her a duty of care, either directly or through agency, in relation to the handling of the sale proceeds. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether a solicitor-client relationship existed between the defendant solicitors and Ms. Trajkovski, thereby imposing a duty of care upon them towards her. Additionally, the court was required to determine whether Ms. Trajkovski had conferred actual or ostensible authority upon her husband to direct the payment of the proceeds of the property sale to the solicitors. Finally, the court considered whether the husband should be treated as a concurrent wrongdoer, which could potentially reduce the solicitors' liability.

The Court of Appeal found that the solicitors did owe a duty of care to Ms. Trajkovski. The court reasoned that the solicitors, by undertaking the sale of jointly owned property in circumstances where they were aware of the ongoing family law dispute and the wife's interest in the property, had created a relationship of proximity with Ms. Trajkovski. This proximity gave rise to a duty to take reasonable care to avoid causing her loss. The court also determined that the husband did not have actual or ostensible authority to direct the payment of the sale proceeds in the manner that occurred. Consequently, the appeal was allowed, the judgment of the trial judge was set aside, and judgment was entered for the plaintiff against the defendants for $814,445.25, with the respondents ordered to pay the appellant's costs at first instance and on appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Judgment of trial judge set aside.

(3) In lieu thereof, judgment that defendants pay plaintiff $814,445.25 (inclusive of interest to date of trial judge’s judgment).

(4) Respondents to pay the appellant’s costs at first instance and on appeal.

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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