Trajkovski v Simpson [2018] NSWSC 720

Supreme Court New South Wales

Medium Neutral Citation: Trajkovski v Simpson [2018] NSWSC 720 Hearing dates: 12-16 March 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Common Law Before: Fagan J Decision: 1. The second further amended statement of claim is dismissed. 2. The plaintiff is to pay the defendants' costs of the proceedings. Catchwords: TORTS – negligence – professional negligence – legal practitioners – plaintiff entitled to payment from husband under Family Court consent orders – where defendants represented husband in matrimonial property dispute and in relation to encumbrance and sale of matrimonial property –wife separately represented in matrimonial proceedings initially – wife terminated retainer of her solicitor and became unrepresented – proceeds from sale of land not used to satisfy payment to plaintiff pursuant to consent orders – whether husband's solicitors owed duty of care to wife – whether defendants acted under conflict of duties – whether unconscionable conduct of defendants under the general law or within meaning of Trade Practices Act 1974 (Cth), s 51AB – ostensible authority and agency – whether husband was ostensible agent of wife in giving instructions to husband's solicitors – claim dismissed Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Revised Professional Conduct and Practice Rules 1995 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14 Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 Hurley v McDonald's Australia Ltd [1999] FCA 1728 Feldman v GNM Australia Ltd [2017] NSWCA 107 Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18 Perera v Genworth Financial Mortgage Insurance (2017) 94 NSWLR 83; [2017] NSWCA 19 Category: Principal judgment Parties: Suzana Trajkovski (plaintiff) Ian Garnet Simpson (first defendant) Simpson & Partners Solicitors Pty Ltd (second defendant) Representation: Counsel: Ms Jill McIntosh (plaintiff) Mr James Emmett/Mr Harrison Grace (defendants)