Mannix v Loumbos Pty Ltd [2000] NSWCA 32

New South Wales Court of Appeal

CITATION : Mannix v Loumbos Pty Ltd [2000] NSWCA 32 revised - 6/03/2000 FILE NUMBER(S) : CA 040422/99 HEARING DATE(S) : 28/02/2000 JUDGMENT DATE : 28 February 2000

PARTIES : John Joseph Mannix & Anor v Loumbos Pty Limited JUDGMENT OF : Priestley JA at 21&23; Fitzgerald JA at 22; Foster AJA at 1-20

LOWER COURT JURISDICTION : District Court LOWER COURT 5149/97 FILE NUMBER(S) : LOWER COURT McLoughlin ADCJ JUDICIAL OFFICER :

COUNSEL : A.M. Colefax for the appellants. N/A for the respondent. SOLICITORS : Blake Dawson Waldron for the appellants. Eakin McCaffery Cox for the respondent. CATCHWORDS : Appeal in respect of order for costs - In breach of retainer - Rent review clause. CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 DECISION : See para 20.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL No. 040422/99 PRIESTLEY JA FITZGERALD JA FOSTER AJA

MONDAY, 28 FEBRUARY 2000 JOHN JOSEPH MANNIX & 1 ORS v LOUMBOS PTY LIMITED JUDGMENT 1 FOSTER AJA: This is an application for leave to appeal brought by the claimants John Joseph Mannix and Pamela Enright against the opponents Loumbos Pty Ltd, ("the company"), in respect of an order for costs made by McLachlan ADCJ on 14 May 1999 in proceedings in the District Court of New South Wales Civil jurisdiction. In those proceedings the claimants, who are solicitors, were the successful defendants. The company, the plaintiff in the proceedings, had asserted that they were in breach of their retainer with it and had been guilty of negligence in relation to their acting for it in respect of a lease of premises to be occupied by it. The gist of the claim, as set out in his Honour's careful judgment, was: "They failed to advise the solicitors for the lessor that the plaintiff would not agree to the rent review clauses being maintained in the lease. They failed to advise the plaintiff and obtain the plaintiff's instructions in relation to the rent review clause and represented to the plaintiffs the lease to be executed contained terms that complied with the plaintiff's instructions in relation to the rent review clause."