Preston v Colquhoun [2010] NSWDC 281

New South Wales District Court

CITATION: Preston v Colquhoun [2010] NSWDC 281

HEARING DATE(S): 10 and 11 June 2010 followed by written submissions to 19 November 2010 when judgment was reserved

JUDGMENT DATE: 25 November 2010

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. Judgment for the defendants 2. Plaintiffs to pay the defendants' costs, on the ordinary basis

CATCHWORDS: PROFESSIONAL NEGLIGENCE - claim in contract and tort against solicitors by a former client alleging a failure to properly investigate and advise in connection with certain civil litigation - claim for the refund of the practitioner/client legal fees paid to the solicitor

LEGISLATION CITED: Civil Liability Act 2002 Limitation Act 1969: s 14

CASES CITED: Heydon v NRMA Limited (2001) 51 NSWLR 1

Preston Australia Pty Limited (First Plaintiff) PARTIES: John Preston (Second Plaintiff) Peter Colquhoun & Paul Alice trading as Colquhoun & Colquhoun Solicitors (Defendants)

FILE NUMBER(S): 08/318586

COUNSEL: Mr T Anderson (Plaintiffs) Mr J Lynch (Defendants)

SOLICITORS: Davidson Gallagher Gerathy Lawyers (Plaintiffs) DLA Phillips Fox (Defendants)

REASONS FOR JUDGMENT

The proceedings and the issues

1. The plaintiffs sue their former solicitors seeking a refund of the practitioner and client fees paid for legal work done in connection with civil proceedings instituted in the Supreme Court in 1987 against the directors of Favelle Cranes and Services Pty Ltd in respect of certain trade debts (the "Favelle proceedings").

2. The Favelle proceedings were commenced by a different firm of solicitors whose instructions were subsequently withdrawn. In April 2001 the plaintiffs retained the defendant solicitors to act for them and those solicitors performed work in connection with the proceedings until 18 February 2002 when the Supreme Court delivered a judgment in which it determined that the proceedings had in fact been dismissed in September 1992 and were a nullity.