Loumbos v Gray as a named partner of ClarkeKann (ABN 92 990 809 254) [2021] NSWSC 1579

Supreme Court New South Wales

Medium Neutral Citation: Loumbos v Gray as a named partner of ClarkeKann (ABN 92 990 809 254) [2021] NSWSC 1579 Hearing dates: 1-2 December 2021 Decision date: 06 December 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the defendants. (2) Reserve costs. (3) List the matter for argument on costs at 9.00am on Tuesday 7 December 2021. Catchwords: NEGLIGENCE — plaintiff claims damages for alleged negligence and misleading and deceptive conduct — whether the defendants were the plaintiff's solicitors and owed him duties of care and fiduciary duties — plaintiff was not the defendants' client at the relevant time — consideration of limited circumstances in which solicitor holds a duty to a third party — interests of plaintiff were potentially in conflict with defendants' client's — defendants did not owe plaintiff a fiduciary duty — defendants may have owed a duty at common law or as fiduciary to their client to encourage the plaintiff to obtain independent legal advice — no breach of any duty established — the factual matrix of the misleading and deceptive conduct claim not made out NEGLIGENCE — causation — scope of liability — consideration of what plaintiff would have done if defendants had advised him to obtain independent legal advice — not persuaded on the evidence that the plaintiff would have taken a different course or there would have been a different outcome if he did — plaintiff failed to discharge onus EVIDENCE — credibility of witnesses — contest of fact between witnesses — plaintiff had poor recollection, inconsistencies between oral evidence and evidence in earlier proceedings, and contemporaneous documents favour the defendants' case — determination that the evidence supports the defendants' case Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E Conveyancing Act 1919 (NSW), s 66W Cases Cited: Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 Loumbos v Ward [2016] NSWSC 885 Onassis v Vergottis [1968] 2 Lloyds Rep 403 Ward v Loumbos [2017] NSWCA 35 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: John Valentine Loumbos (Plaintiff) John James Montgomery Gray as a named partner of ClarkeKann (ABN 92 990 809 254) (First Defendant) Miles Robert Anderson as a named partner of ClarkeKann (ABN 92 990 809 254) (Second Defendant) Richard Michael Burr as a named partner of ClarkeKann (ABN 92 990 809 254) (Third Defendant) Steven Mark Cardell as a named partner of ClarkeKann (ABN 92 990 809 254) (Fourth Defendant) Dale Francis Cliff as a named partner of ClarkeKann (ABN 92 990 809 254) (Fifth Defendant) Timothy John Crumpton as a named partner of ClarkeKann (ABN 92 990 809 254) (Sixth Defendant) Timothy David Ferrier as a named partner of ClarkeKann (ABN 92 990 809 254) (Seventh Defendant) John Richard Paul Hunt as a named partner of ClarkeKann (ABN 92 990 809 254) (Eighth Defendant) Peter Lorrimer Karcher as a named partner of ClarkeKann (ABN 92 990 809 254) (Ninth Defendant) Paul Michael O'Dea as a named partner of ClarkeKann (ABN 92 990 809 254) (Tenth Defendant) Bernard Francis Tan as a named partner of ClarkeKann (ABN 92 990 809 254) (Eleventh Defendant) John Dominic Toigo as a named partner of ClarkeKann (ABN 92 990 809 254) (Twelfth Defendant) Belinda Eliza Hapgood (nee Weir) as a named partner of ClarkeKann (ABN 92 990 809 254) (Thirteenth Defendant) Shane Russell Williamson as a named partner of ClarkeKann (ABN 92 990 809 254) (Fourteenth Defendant) Representation: Counsel: In person (Plaintiff) A Horvath SC (Defendants)