Preston v Colquhoun [2010] NSWDC 281

Preston v Colquhoun [2010] NSWDC 281

The plaintiffs failed because the Favelle proceedings had not been dismissed in September 1992 and were not a nullity; they had merely been removed from the General List and remained dormant but extant until 18 February 2002. Mr Colquhoun reviewed and understood the court File Enquiry summary, appropriately advised Mr Preston that the prospects of reviving the proceedings and resisting dismissal were very poor, and acted on instructions to try to settle or salvage the matter. The work was not shown to be wasted or useless, the ex gratia application to the Attorney General's Department was reasonable and made on instructions, and no loss caused by negligence or breach of contract was proved.

Jurisdiction
Australia
Judgment Date
25 November 2010
Procedural Posture
Civil Professional Negligence Claim in Contract and Tort Against Solicitors by Former Clients / Judgment After Hearing
Outcome
Judgment for the defendants.
Legal Topics
["solicitors' Duties" 'alleged Failure to Investigate and Advise' 'dismissal of Inactive Proceedings' 'proceedings Struck Out of General List' 'want of Prosecution' 'causation and Loss' 'ex Gratia Claim for Reimbursement of Legal Costs' 'limitation Defence']
['professional Negligence' 'contract' 'tort' 'civil Procedure' 'legal Costs'] ["solicitors' Duties" 'alleged Failure to Investigate and Advise' 'dismissal of Inactive Proceedings' 'proceedings Struck Out of General List' 'want of Prosecution' 'causation and Loss' 'ex Gratia Claim for Reimbursement of Legal Costs' 'limitation Defence']

Case Brief

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Procedural Posture

Civil Professional Negligence Claim in Contract and Tort Against Solicitors by Former Clients / Judgment After Hearing

Legal Issues

  1. 1 ['Were the Favelle proceedings dismissed in September 1992 such that they became a nullity, or were they only struck out of the General List and technically still extant?' 'Did the defendant solicitors adequately investigate and advise the plaintiffs in April 2001 in relation to the status of the Favelle proceedings?' "Did the defendant solicitors wrongly advise the plaintiffs in February 2002 that they were entitled to reimbursement of their legal costs by the Attorney General's Department?" 'Did the plaintiffs suffer any loss caused by negligence or breach of contract?' "Are the plaintiffs' claims out of time under s 14 Limitation Act 1969?"]

Ratio Decidendi

The plaintiffs failed because the Favelle proceedings had not been dismissed in September 1992 and were not a nullity; they had merely been removed from the General List and remained dormant but extant until 18 February 2002. Mr Colquhoun reviewed and understood the court File Enquiry summary, appropriately advised Mr Preston that the prospects of reviving the proceedings and resisting dismissal were very poor, and acted on instructions to try to settle or salvage the matter. The work was not shown to be wasted or useless, the ex gratia application to the Attorney General's Department was reasonable and made on instructions, and no loss caused by negligence or breach of contract was proved.

Court Disposition

Judgment for the defendants.

Orders

  • ['Judgment for the defendants' "Plaintiffs to pay the defendants' costs, on the ordinary basis"]