Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 3) [2024] NSWSC 888

Supreme Court New South Wales

Medium Neutral Citation: Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 3) [2024] NSWSC 888 Hearing dates: 27, 28, 29, 30 November, 1, 6 December 2023 and 9 April 2024 Date of orders: 23 July 2024 Decision date: 23 July 2024 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Judgment for the defendant. (2) The plaintiff is to pay the defendant's costs. (3) I grant liberty to apply on 3 days' notice should either party seek a variation of the costs order. Catchwords: NEGLIGENCE – solicitors – plaintiffs retained the defendant to advise and appear in respect of claims against them in the District Court – plaintiffs failed in all proceedings – whether the defendant should have advised that the defences were hopeless and doomed to fail prior to their filing –effect of "no oral variation" clauses in Australia OCCUPATIONS – legal practitioners – solicitors –advising client – obligation of solicitor to advise client that defence has no reasonable prospects of success – effect of Legal Profession Uniform Law Application Act 2014 (NSW) sch 2 NEGLIGENCE – damages – where plaintiffs' claim limited to costs paid for legal services and ordered costs in the District Court proceedings – where portion of these costs paid by companies unrelated to the proceedings but under the control of one of the plaintiffs – whether plaintiffs entitled to claim portion of costs paid by these "related entities" Legislation Cited: Civil Liability Act 2002 (NSW), ss 5A, 5B, 5D Legal Profession Uniform Law Application Act 2014 (NSW), sch 2 Uniform Civil Procedure Rules 2005 (NSW), r 51.9 Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 Bailey v Bailey (1924) 34 CLR 558 Bird v Ford [2013] NSWSC 264 Bird v Ford [2014] NSWCA 242 Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd [2019] NSWCA 87 Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 Fink v Fink (1946) 74 CLR 127 Flynn v PPK Mining Equipment Pty Ltd (No 2) [2022] NSWSC 1640 Gokani v Visvalingam Pty Ltd [2023] NSWCA 80 Heydon v NRMA Ltd (2000) 51 NSWLR 1 Jones v Dunkel (1959) 101 CLR 298 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] 2 WLR 1603 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Royal Society for Prevention of Cruelty to Animals (Victoria) v Holdsworth [2015] VSCA 243 Sara Stockham Pty Ltd v WLD Practice Holdings Pty Ltd [2021] NSWCA 51 Short v Delaney [1999] NSWSC 1293 Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 2) [2024] NSWSC 887 White v Philips Electronics Australia t/as Philips Healthcare [2019] NSWCA 115 Category: Principal judgment Parties: Victorian X-Ray Group (Dandenong) Pty Ltd (First plaintiff) Victorian X-Ray Group (Boronia) Pty Ltd (Second plaintiff) Bevyn Thomas White (Third plaintiff) Anthony Malouf t/a Malouf Solicitors (Defendant) Representation: Counsel: M Luitingh (Plaintiffs) A Avery-Williams with P Boyle (Defendant)