Abriel v Levitt [2004] NSWCA 258

Abriel v Levitt [2004] NSWCA 258

Most of Mr Abriel's claims were barred as an abuse of process because they sought to re-litigate issues decided against him in the Federal Court proceedings before Dowsett J, including findings negating causation, undue influence, reliance on counsel's or the solicitor's advice, and the alleged retainer beyond the mediation. However, the allegation in para 14(xii) that the solicitor intimated to the companies' legal advisers during mediation that he was not committed to taking the case to trial was not inconsistent with Dowsett J's findings and had not been shown to disclose no triable issue. The summary dismissal therefore had to be varied so that only that residue of the action could...

Jurisdiction
Australia
Judgment Date
30 July 2004
Procedural Posture
Application for Leave to Appeal in Proceedings for Negligence, Breach of Duty and Breach of Contract Against Former Solicitor; Abuse of Process and Summary Dismissal / Application for Leave to Appeal From Gzell J's Order Summarily Dismissing the Action
Outcome
Leave to appeal granted; appeal allowed in part; summary dismissal varied so that the action was dismissed except for the breach alleged in para 14(xii) of the statement of claim; appeal otherwise dismissed; no order as to costs.
Legal Topics
['abuse of Process' 're Litigation of Issues Decided in Earlier Proceedings' 'summary Dismissal' 'solicitor Client Retainer' "solicitor's Duty of Confidentiality" 'loss of Chance Damages']
['civil Procedure' 'professional Negligence' 'contract' "solicitors' Duties"] ['abuse of Process' 're Litigation of Issues Decided in Earlier Proceedings' 'summary Dismissal' 'solicitor Client Retainer' "solicitor's Duty of Confidentiality" 'loss of Chance Damages']

Case Brief

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Procedural Posture

Application for Leave to Appeal in Proceedings for Negligence, Breach of Duty and Breach of Contract Against Former Solicitor; Abuse of Process and Summary Dismissal / Application for Leave to Appeal From Gzell J's Order Summarily Dismissing the Action

Legal Issues

  1. 1 ['Whether the action against the solicitor was an abuse of process because it attempted to re-litigate issues decided against Mr Abriel in earlier Federal Court proceedings.' 'Whether any allegation in the statement of claim raised a triable issue not foreclosed by the findings of Dowsett J.' 'Whether the order summarily dismissing the whole action should be varied to preserve the allegation in para 14(xii) of the statement of claim.']

Ratio Decidendi

Most of Mr Abriel's claims were barred as an abuse of process because they sought to re-litigate issues decided against him in the Federal Court proceedings before Dowsett J, including findings negating causation, undue influence, reliance on counsel's or the solicitor's advice, and the alleged retainer beyond the mediation. However, the allegation in para 14(xii) that the solicitor intimated to the companies' legal advisers during mediation that he was not committed to taking the case to trial was not inconsistent with Dowsett J's findings and had not been shown to disclose no triable issue. The summary dismissal therefore had to be varied so that only that residue of the action could...

Court Disposition

Leave to appeal granted; appeal allowed in part; summary dismissal varied so that the action was dismissed except for the breach alleged in para 14(xii) of the statement of claim; appeal otherwise dismissed; no order as to costs.

Orders

  • ['Grant leave to appeal.' 'Dispense with the filing of a notice of appeal.' 'Appeal allowed in part.' 'Order of Gzell J for summary dismissal of the action varied by substituting an order dismissing the action insofar as it claimed damages for breaches of duty and breaches of contract other than the breach alleged...