Wright v Richardson & Ors No. DCCIV-96-53 Judgment No. D3677

[1997] SADC 3677

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of Judge Burley

Hearing

10/09/97 to 12/09/97, 15/09/97.

Catchwords

PROFESSIONSClaim for damages against solicitor for alleged professional negligence and misconduct - whether solicitor guilty of negligence or misconduct - claim dismissed.

Representation

Plaintiff MALCOLM GEORGE WRIGHT:
Counsel: MR T M MCRAE - Solicitors: STANLEY &; PARTNERS

Defendant PAUL ANTHONY RICHARDSON:
Counsel: MR B M O'BRIEN - Solicitors: DAENKE O'DONOVAN

Defendant MICHCO PTY LTD TRADING AS MICHELL &; CO:
Counsel: MR B M O'BRIEN - Solicitors: DAENKE O'DONOVAN

Third Party LEGALESE PTY LTD TRADING AS PETER SCRAGG:
Represented by: NO APPEARANCE

DCCIV-96-53

Judgment No. D3677

26 September 1997

(Civil)

WRIGHTvRICHARDSON & ORS

DISTRICT COURT ACTION NO 53 OF 1996

Judge Burley

In this action the plaintiff has sued the defendants, his former solicitors, for damages in respect of alleged "wrongful conduct" on the part of each of the defendants.The alleged "wrongful conduct" may be characterised as either negligence or breach of retainer on the part of the respective solicitors.The amount of the damages sought is $30,000 and a judgment is sought against each of the defendants in that sum.The action was originally commenced in the Magistrate's Court, but, part-way through a trial in that Court, the action was transferred to this Court.

The undisputed background facts are that for many years prior to the events the subject of these proceedings, the plaintiff (Mr Wright) and the first defendant (Mr Richardson) were friends who shared a common interest in military matters and war games.Mr Wright, over the period that he and Mr Richardson were friends, ran consecutive retail shop businesses at which the artefacts of their interest were sold to like-minded members of the public.Mr Richardson helped out and worked in those businesses with the agreement of Mr Wright.

Mr Richardson's career has been varied:he was, firstly, a police officer, he then joined the army and, finally, he undertook Matriculation and University studies as a mature student, eventually obtaining an Honours Degree in Arts and a Law Degree.He has recently completed a Masters Degree in Law.He commenced practice in November 1987.Initially, he worked for a Mr Peter Scragg for approximately three years.He then worked on his own account for a period of four or five months, at the expiration of which he commenced work with the second defendant, which is an incorporated legal practice.The principal of that practice is Mr K B Wight.

One of the businesses operated by the plaintiff in conjunction with others came to an abrupt end when one of the "partners", a Dr Lee, purported to take over the business and exclude the others of those involved.Mr Wright, in conjunction with a Mr Peter Birt, sued Dr Lee and others in the Supreme Court. It was alleged, in essence, that a partnership agreement had been breached by the defendants and various orders including the taking of accounts were sought. The plaintiffs in the Supreme Court action were represented by the firm Rogers Branch and Co.According to Mr Wright, shortly prior to trial Mr Rogers informed Mr Wright and Mr Birt that he did not have time to prepare the matter for trial, that he did not wish to continue to act and that other solicitors should be engaged to represent them in the Supreme Court action.Attempts were made to do this and a solicitor was retained at relatively short notice, but that solicitor had no opportunity adequately to prepare the matter for trial because, it was alleged, the file maintained by Mr Rogers was hopelessly inadequate.All that Mr Wright and Mr Birt were able to achieve was an agreement with the defendants that there would be a mutual withdrawal with each party paying their respective costs, and that is what occurred when the matter was called on for trial.

Mr Wright said that he retained Mr Richardson with a view to commencing proceedings against Rogers Branch and Co for professional negligence.Mr Wright alleged that he instructed Mr Richardson that he was to be the only plaintiff in the proceedings against Rogers Branch and Co because he, Mr Wright, understood that Mr Birt was not willing to be involved in such proceedings.Mr Richardson disputed this fact.He said that he sought and obtained from both Mr Wright and Mr Birt authority to commence proceedings whereby Mr Wright and Mr Birt were plaintiffs against Rogers Branch and Co in this Court.Such proceedings were commenced, being Action No 804 of 1991.A copy of the Summons is in evidence.One of the date stamps appears to disclose a date of 8 March 1981 but it is common ground that the Summons was issued on 8 March 1991.

The dispute between the plaintiff and the first defendant relating to whether or not Mr Birt was to be joined as a plaintiff in the District Court proceedings is one of several.I shall refer to each of the factual disputes in this narrative of events and will return to each of those disputes later in these reasons.

Not long after the commencement and service of the District Court proceedings against Rogers Branch and Co, an appearance was entered on behalf of Rogers Branch and Co and an application was made to strike out the statement of claim. Prior to that application coming on for hearing there were informal discussions between the solicitors for the parties (Mr Richardson, on behalf of the plaintiffs, and Mr Forrest, on behalf of the defendant) relating to a possible settlement of the matter.

Mr Richardson said that he had a discussion with Mr Forrest to the effect that the matter might be able to be settled on the basis that the defendant (Rogers Branch and Co) pay the sum of $10,000 inclusive of interest and costs.Mr Forrest, called by the defendants in this action, said that two sums were discussed at different times in relation to settlement.He said that he initially suggested to Mr Richardson that the matter might be able to be settled for $5,000, inclusive of interest and costs.This offer was apparently rejected but later a further discussion took place in which the sum of $10,000 was suggested as the appropriate settlement figure.It is common ground that the District Court action settled on the basis that the defendant pay the plaintiffs the sum of $10,000, inclusive of interest and costs.Mr Richardson stated that he obtained instructions from both Mr Wright and Mr Birt to settle on such a basis.Mr Birt confirmed in his evidence that he authorised Mr Richardson to settle on such a basis.

Mr Wright denied that he gave instructions to Mr Richardson to settle the District Court action on such a basis.He said that after the District Court proceedings were commenced, Mr Richardson informed him that settlement discussions had taken place between him and the solicitor for Rogers Branch and Co and that the matter might be settled on the basis that the defendant pay the plaintiffs the sum of $15,000, inclusive of interest and costs.Mr Wright said that he would agree to such a settlement.He then said that his next conversation with Mr Richardson in relation to settlement of the District Court action was to the effect that Mr Richardson informed him that the matter had been settled on the basis that the defendant would pay the sum of $10,000 inclusive of interest and costs.Mr Richardson said that he pointed out that he had not agreed to such a settlement and an argument between the two ensued. He said that he was told by Mr Richardson that there was nothing he could do about the settlement on the basis that the $10,000 would be paid because it had already been agreed upon.When these allegations were put to Mr Richardson in evidence he firmly rejected them.

The next allegation of misconduct made by Mr Wright against Mr Richardson involved the disbursement of the $10,000 received in settlement of the District Court action.It is necessary to set out the background relating to such payments.It was not disputed that Mr Wright and Mr Richardson were two of several directors and shareholders of a company called Protector Games Australia Pty Ltd.That company operated a retail business selling military and war games material.It did so from premises which it occupied pursuant to a lease from a company called D-VIP Holdings Pty Ltd.Both Mr Wright and Mr Richardson worked at the business premises from time to time but, apparently, the day-to-day running of the business was handled by Mr Wright's stepson.It appears, from the evidence of Mr Frost, an accountant called by the defendants, that the business was not run very efficiently and that such records as were kept were inadequate.Mr Frost had advised Mr Wright that the business was making a loss and that it would be better for it to be closed.Mr Wright did not agree with the closure of the business.Eventually the company defaulted in respect of payments of rent and the landlord issued to a bailiff a warrant to distrain in respect of goods at the subject premises in order to recover the arrears of rent.Although the evidence is slight, it is also apparent that the landlord purported to re-enter the premises because when the bailiff attended with the warrant to distrain, door locks were changed.

It was common ground that the company was substantially in arrears and had no means of its own to pay the arrears or any part thereof.Mr Richardson discussed the difficulties with Mr Wright and suggested that it might be necessary to close the business down.According to Mr Richardson, Mr Wright was not prepared to have the business closed down.All this occurred at a time when Mr Wright was expecting a payment of the sum of $10,000, being the monies from the settlement of the District Court action.According to Mr Richardson, Mr Wright agreed to use part of those settlement monies to pay the arrears of rent so that the business could continue at the premises.All this occurred in about June of 1991.

Mr Wright asserted in evidence that he was, in effect, told by Mr Richardson that he was liable to pay the arrears of rent because of his obligations under a guarantee which had been signed at the time the lease was executed.(The lessee under the lease was a company and the lessor required directors' guarantees, which were given by Mr Wright and Mr Richardson and another.)The lease and guarantee were entered into about November 1989.

Mr Richardson denied that, in June 1991, he advised Mr Wright that he was obliged under the guarantee to make the payment in respect of the arrears of rent.He said that Mr Wright's agreement to apply most of the proceeds of the settlement of the District Court action to paying off the arrears owed by the company arose from Mr Wright's unwillingness to have the business closed down. There is some corroboration for this in the evidence of Mr Frost, the accountant.He said that he spoke to Mr Wright at the time that the landlord was pressing for payment of arrears and suggested to Mr Wright that the business be closed down because it was not viable.He said that he was told by Mr Wright that he did not want to close the business down because it had an overdraft with the Commonwealth Bank which was secured by the deposit of monies belonging to his mother with the relevant branch of the Bank.According to Mr Frost, Mr Wright told him that he could not let the business close because otherwise his mother would lose her money.

This was more or less the position taken by Mr Wright when these proceedings were in the Magistrate's Court.The transcript of Mr Wright's evidence taken in the Magistrate's Court has been marked for identification in the trial before me and some reference to it was made during the course of the cross-examination of Mr Wright.However, the transcript, or the relevant parts of it, were not subsequently tendered in evidence.Nevertheless, it is sufficiently clear from the cross-examination that Mr Wright said before the Magistrate that the monies which secured the overdraft of the company were monies belonging to his mother.In the trial before me he said that in reality the monies were a gift from his mother to him but that it had been agreed between his mother and himself that neither would disclose the gift because she (Mr Wright's mother) did not want to be seen to be favouring one of her children over others.For that reason, according to Mr Wright, he said in evidence before the Magistrate that the money belonged to his mother.

This stance was apparently taken by Mr Wright to off-set the assertion by Mr Richardson that the payment of $8,000 towards the arrears of rent was not because Mr Wright was liable to do so pursuant to the terms of the guarantee but because he was the only one who wished the business to be preserved and, indeed, the only one of those interested in the business who were prepared to put any further money into it.

In summarising the respective positions of each of the parties as to these various factual differences, I have not been able to be very precise because the evidence given before me was imprecise.Neither Mr Wright nor Mr Richardson were impressive witnesses and both had a tendency to give ill-considered answers which in turn gave the impression that, where they had no precise memory as to events, their evidence consisted of a reconstruction of events.Mr Richardson had not helped himself because, in his dealings with Mr Wright, which were of a legal nature, he did not make any notes.He thereby ran the risk that, in the event of subsequent factual differences arising between himself, a solicitor, and his client, the Court might give the client the benefit of any doubt that existed.However, in general terms my impression of Mr Wright was that I could not necessarily rely upon either the truthfulness or accuracy of his evidence.Insofar as Mr Richardson was concerned, I formed the view that I could not necessarily rely upon the accuracy of his evidence although I think that he endeavoured to be truthful.The more detailed consideration of the factual differences between the parties which follows sets out my reasons for arriving at these conclusions as to the credibility of Mr Wright and Mr Richardson.

I turn to a consideration of whether or not Mr Richardson went against Mr Wright's instructions in joining Mr Birt as a co-plaintiff in the District Court action.One of the difficulties to be dealt with in relation to deciding whether or not Mr Wright was, at the time of the commencement of the District Court proceedings, or perhaps later became, aware that Mr Birt was a co-plaintiff, arises from the fact that material parts of Mr Richardson's evidence in that regard were not put to Mr Wright.In particular, Mr Wright's evidence-in-chief was hardly under way when he made mention of the fact that he discussed a draft statement of claim with Mr Wright which showed that both Mr Wright and Mr Birt were intended plaintiffs.This was apparently at a face-to-face meeting when a draft of the document was tabled by Mr Richardson and discussed by both of them.

The draft was not produced from the file, nor was any such draft discovered and Mr Richardson was unable to explain where it had got to.There are only three explanations as to why that material was not put to Mr Wright during cross-examination by counsel for the defendant in this action:first, that Mr Richardson had not told his legal advisers of these events prior to going into the witness box but they actually occurred;second, that he fabricated that evidence in the witness box;and, third, that counsel omitted to put such instructions to Mr Wright in cross-examination.I do not consider, having reviewed Mr Richardson's evidence as a whole, that a finding that the second alternative occurred is warranted.I have no means of knowing as to whether the first or the third of the alternatives applies.However, in the circumstances, I accept the submission of Mr McRae, counsel for Mr Wright, that little weight should be attached to Mr Richardson's evidence that he discussed a draft of the statement of claim with Mr Wright at or prior to the commencement of the proceedings in the District Court.

The evidence of Mr Wight bears upon the question as to the circumstances under which the $8,000 was paid to the landlord of the leased premises.Exhibit P1.5 is a letter from Mr Wight to Mr Wright, which I find was sent by Mr Wight and received by Mr Wright.The letter sets out Mr Wight's advice in relation to a payment of the arrears of rent owing by Protector Games Australia Pty Ltd.The letter, dated 4 July 1991, is addressed to Silverdale Pty Ltd and to Mr Wright. It refers to the arrears of rent owing by Protector Games Australia Pty Ltd to D-VIP Holdings Pty Ltd.Attached to the letter was a schedule of rental arrears together with a calculation of interest and an estimate as to costs. The total owing was found to be $8,231.27.In the penultimate paragraph of that letter Mr Wight said:-

"You will be aware that we are holding to your credit an amount of $8,000 in our trust account.We can use those monies to part satisfy the claim if those are your instructions.The alternative is to seek to challenge the landlord, however, the end result, in our opinion, is that you are not likely to succeed and that the landlord will again distrain against the property."

Nobody challenged that advice nor does it seem to me that it could have been challenged.In the circumstances which prevailed at the time it was sensible, practical advice.It is to be noted that at even at that late stage Mr Wight indicated that the $8,000 held in his trust account (being part of the settlement monies received from the District Court action) could be applied to the arrears "if those are your instructions".There was nothing in that letter which indicated to Mr Wright that he was obliged under the guarantee to make the payment.The tenor of the letter was to present the alternatives of either paying up or risking an unsuccessful challenged to the landlord's stated position.This letter clearly corroborates the position taken by Mr Richardson.

The response of Mr Wright that, nothwithstanding the letter of 4 July 1991, he thought he was obliged to make the payment of arrears from his own funds out of the settlement monies is unconvincing.His protestations in the witness box that he was not a lawyer and that he was not a very good businessman are not to the point.Mr Wight had been engaged to advise about the question of the arrears and what alternatives were open to Mr Wright.The alternatives were clearly put to him in the letter of 4 July 1991.There was no mention of any obligation under a guarantee.

In addition, Mr Wright's evidence as to his dealings with Mr Richardson at the time that the landlord sought to distrain for rent are vague on the question of what, if anything, was said about either of them in relation to the guarantee. In those circumstances I have some difficulty in accepting that the cause of the payment of $8,000 to the landlord was advice allegedly given by Mr Richardson to Mr Wright that Mr Wright was liable to do so pursuant to the terms of the guarantee.Had that occurred, Mr Richardson would clearly have been in a position of conflict because his own personal interests in Protector Games Australia Pty Ltd were affected by whether or not the arrears of rent were paid.It seems to me that Mr Richardson, with the benefit of hindsight, should have raised these questions with Mr Wright as a matter of proper professional conduct, but I cannot see that his failure to do so has in any way adversely affected the position of Mr Wright.In my view, contrary to what Mr Wright said to me in the witness box, he was motivated to make the $8,000 payment not by any perceived obligation under a guarantee but, rather, to preserve the business so that the funds held by the Commonwealth Bank to secure the business overdraft would not be lost.In arriving at that conclusion it is not necessary for me to decide whether those funds belonged to him or to his mother.

That finding has a significant bearing not only upon the claim against Mr Richardson but also on the claim against the second defendant, Mr Wight's incorporated practice.If Mr Richardson was not guilty of the wrongful conduct attributed to him, nor was the second defendant through Mr Wight.The only complaint that might possibly give rise to an action in damages between Mr Wright and Mr Wight is that relating to the payment of the $8,000 in respect of the arrears of rent.In that regard it is clear that the second defendant acted for Mr Wright in relation to the payment of the $8,000 to the landlord's solicitors.Because of my finding that Mr Wright voluntarily paid the $8,000 in respect of the arrears of rent, no liability in respect of same can attach to the second defendant.It follows that the plaintiff's claim against the second defendant must be dismissed.

It is asserted in the statement of claim that the second defendant is vicariously responsible for the actions of Mr Richardson.That could only be the case if, at the time that Mr Richardson acted for Mr Wright, he did so as an employee of the second defendant.There is nothing on the facts before me to suggest that Mr Richardson acted for Mr Wright in respect of the District Court action as the employee of the second defendant.Both Mr Richardson and Mr Wight stated that Mr Richardson had a right of private practice.They also agreed that Mr Richardson brought the District Court file with him when he commenced employment with the second defendant.Although it is by no means clear, it seems to me that Mr Richardson acted for Mr Wright in respect of the District Court action pursuant to his right of private practice.No fees were ever rendered in the name of the second defendant in respect of that action. Indeed, such fees as there were, were paid to Mr Scragg, Mr Richardson's former employer.In short, I do not consider that Mr Wright has established on the balance of probabilities that Mr Richardson acted for him in respect of the District Court action as the employee of the second defendant.That being the case it follows that the second defendant cannot be vicariously responsible for any actions of Mr Richardson in respect of the conduct and disbursement of the proceeds obtained from the District Court action.This constitutes an additional reason for concluding that Mr Wright's claim against the second defendant must fail.

The settlement monies of $10,000 were paid by two cheques:the first being $2,000 which represented the contribution of Rogers Branch to the settlement and the balance of $8,000 being paid by Law Claims.Mr Richardson arranged for the cheque for $8,000 to be paid into the trust account of Mr Wight and for the cheque for $2,000 to be paid into his trust account.He said that the $8,000 was paid into Mr Wight's trust account with Mr Wright's agreement because Mr Wright had agreed to use those monies to pay the arrears of rent.I accept that explanation because it is consistent with my findings set out above that Mr Wright agreed to the payment of the $8,000 off the arrears of rent so as to preserve the business.The balance of $2,000 was paid by Mr Richardson as set out in the trust account statement which is Exhibit P1.2.That statement shows that $842 was paid to the Legal Services Commission, $1,000 to Mr Birt and the balance of $158 to Barratt Lindquist.

Mr Wright did not challenge the refund to the Legal Services Commission. However, he said that because he did not understand Mr Birt to have been a plaintiff to the action, he thought that the settlement monies would be paid to him and not to Mr Birt.Mr Richardson and Mr Birt both gave evidence that Mr Birt instructed Mr Richardson that Mr Birt would accept $1,000 of the settlement monies.Mr Richardson also said that he had obtained instructions from Mr Wright that $1,000 was to be paid to Mr Birt.Mr Richardson's evidence was that Mr Wright reluctantly agreed to the payment of $1,000 to Mr Birt but later changed his mind and told Mr Richardson that he was not to pay the $1,000 to Mr Birt.By then the settlement had been effected and Mr Richardson took the view that he was legally and professional obliged to pay the $1,000 to Mr Birt.

In order to resolve this dispute I must determine whether or not Mr Richardson was obliged to pay the money to Mr Birt and that in turn involves a determination of whether I should accept the evidence of Mr Wright or the evidence of Mr Richardson.Because there are a number of material disputes of fact I think it appropriate to canvass all of those before reaching a determination as to whether I accept either version put forward by them.

Mr Wright's allegations against Mr Richardson are quite serious.He holds Mr Richardson responsible for the loss of at least $8,000 and for settling a matter for $5,000 less than his instructions permitted.He has also accused Mr Richardson of preferring his own interests against those of Mr Wright.There is little if any corroboration of the assertions made by Mr Wright against Mr Richardson.On the other hand, the evidence of Mr Richardson has been corroborated in material particulars.The evidence given by Mr Forrest as to the progress of negotiations for the settlement of the District Court action are consistent with Mr Richardson's evidence.Mr Wight's evidence is consistent with Mr Richardson's in the important context of what options were open to Mr Wright in relation to the payment of the arrears of rent.It is clear from Mr Wight's letter of 4 July, to which I have previously referred, that Mr Wright was not presented with a fait accompli with regard to the use of the $8,000 to pay the arrears of rent.Unless the above analysis sounds too much like lawyers corroborating each other, Mr Richardson's evidence as to the reason why the $8,000 was paid for the arrears of rent is corroborated by the evidence of Mr Frost.In my view both Mr Wight and Mr Frost were reliable and accurate witnesses.I accept their evidence without hesitation.In accepting their evidence it must follow that there is evidence corroborative of material parts of the evidence of Mr Richardson.

The examination of Mr Frost's evidence also brings to the forefront Mr Wright's elaborate explanation as to the ownership of the monies held by the Commonwealth Bank as security for the business overdraft.The explanation is too tortuous to be believed and I reject it.

Looking at the evidence of all of the witnesses as a whole, I have come to the conclusion that the evidence of Mr Richardson is to be preferred to any uncorroborated evidence given by Mr Wright where Mr Richardson's evidence has been corroborated in a material particular.As I have said before, I do not consider that Mr Richardson was an untruthful witness but the reliability of his evidence left something to be desired.His evidence has been corroborated in a material way in relation to the allegations of misconduct against him with regard to the settlement of the District Court action and the disbursement of the $8,000.

As to the payment of $1,000, this is tied up inextricably with the question of whether or not Mr Wright instructed Mr Richardson not to join Mr Birt as a plaintiff in the District Court action.If I had to decide that point merely by reference to the evidence of each of them, it is probable that I would not be able to come to a conclusion one way or the other because the evidence of neither of them is reliable.However, Mr Birt was called by Mr Wright and Mr Birt did not confirm Mr Wright's assertion that he, Mr Birt, had informed Mr Wright that he did not wish to be joined in the District Court action.It is clear that he was not enthusiastic about the proposed action but he agreed to be joined.In accepting Mr Birt's evidence to this effect, I reject the assertion implicit in Mr Wright's evidence that Mr Birt had said that he did not wish to participate in the District Court action.I also do not accept that Mr Wright told Mr Richardson not to join Mr Birt as a co-plaintiff.It must follow that Mr Birt was therefore properly joined as a plaintiff to the action and was entitled to participate in the settlement proceeds.Mr Birt's evidence that he agreed to a settlement on the basis of payment of the sum of $10,000 inclusive of interest and costs, corroborates Mr Richardson's evidence that a settlement was properly effected along those lines.Mr Birt also said in evidence that he agreed to accept $1,000 out of the settlement proceeds. This evidence to some degree corroborates Mr Richardson's evidence that he obtained instructions from Mr Wright not only to settle in the sum of $10,000 inclusive of interest and costs but also to the payment of $1,000 to Mr Birt out of the settlement proceeds.Again, the elaborate explanation by Mr Wright as to why this was not so is unconvincing and I reject it.

There remains to be considered the disbursement of $158.00.I have no hesitation in accepting Mr Richardson's evidence that he was instructed to pay the balance of the money held by him off the debt owed for advertising expenses to "The Advertiser" newspaper.This payment was represented by payment of $185 to Barratt Lindquist, the solicitors for "The Advertiser".

The essence of the claim by Mr Wright is set out in paragraph 30 of the statement of claim which is as follows:-

"30. The plaintiff claims damages, including aggravated damages, in the amount of $30,000.00

PARTICULARS OF DAMAGE AND LOSS

As a result of the wrongful conduct of the defendants and each of them as set out herein, the plaintiff:-

30.1 suffered the loss of, or alternatively the loss of the use of, the sum of $8,000 paid without authority to D.-V.I.P. Holdings Pty Ltd.This sum was not owed by the plaintiff as alleged or at all.

30.2 suffered the loss of, or alternatively the loss of the use of, the sum of $158.00 paid without the plaintiff's authority to Barratt Lindquist.This sum was not owed by the plaintiff as alleged or at all.

30.3 suffered the loss of, or alternatively the loss of the use of, the sum of $1,000.00 paid without the plaintiff's authority to Birt.This sum was not owed by the plaintiff as alleged or at all.It was an amount recovered in settlement of the plaintiff's claim in District Court Action No 0804/91 aforesaid and was payable to the plaintiff.

30.4 suffered the loss of the chance to secure by way of judgement a sum greater than the sum of $10,000.00 which was accepted without his authority in full settlement and satisfaction of District Court action no 0804 91, that claim being for damages for negligence by the plaintiff's former solicitors in their pursuit on behalf of the plaintiff of Supreme Court Action No 3297 81 in which the plaitiff [sic] claimed for damages or loss in the vicinity of $80,000-100,000.

30.5 suffered symptoms of a stress and anxiety condition (or an exacerbation thereof) and profound depression which:-

30.5.1 further resticted [sic] his already limited capacity for employment, and

30.5.2 compromised his ability to engage in and enjoy his usual personal, domestic, social and recreational activities."

As to paragraph 30.1, my finding is that the $8,000 paid by Mr Wright in respect of the arrears of rent was a voluntary payment made by him without reference to any advice that he may have received about the appropriateness of such a payment or any advice that he had formerly received about the enforceability of the guarantee which he had signed.That aspect of the plaintiff's claim must fail.

As to paragraph 30.2, it follows from my conclusions with regard to the payment of $158 that this aspect of Mr Wright's claim must fail.

As to paragraph 30.3, my conclusion that the sum of $1,000 paid to Mr Birt out of the settlement monies from the District Court action was a legitimate payment also requires this aspect of Mr Wright's claim to be dismissed.

As to paragraph 30.4, because I have found that both Mr Wright and Mr Birt instructed Mr Richardson to settle the District Court action on the basis of a payment in the sum of $10,000, inclusive of costs and interest, this aspect of the plaintiff's claim must fail.

As to paragraph 30.5, because of my finding that there has been no misconduct on the part of the defendants, this aspect of Mr Wright's claim must fail even if it is assumed that such damages are recoverable in the circumstances alleged in the statement of claim.I make no decision in that regard because it is not necessary for me to do so.

For the above reasons the plaintiff's claim against the defendants will be dismissed.I will hear counsel as to costs.