Wittenberg v Gillis and Ors [2022] NSWSC 287

Wittenberg v Gillis and Ors [2022] NSWSC 287

The plaintiff failed to establish any of his claims. The Court preferred Mr Gillis's evidence, supported by contemporaneous documents, that the plaintiff was informed of the offers, received advice about their effect and costs consequences, and instructed rejection or counter-offers. The settlement advice, although confident, was not negligent when assessed prospectively and in context, and causation was not proved because the plaintiff would not have accepted the offer to compromise or his component of the global offer. There was no breach of fiduciary duty in relation to the global offer because there was no actual duty-duty conflict preventing Mr Gillis from advancing each client's...

Jurisdiction
Australia
Judgment Date
25 March 2022
Procedural Posture
Torts – Professional Negligence Claim Against Legal Practice Concerning Settlement Advice and Advice to Bring and Maintain Deceit and Exemplary Damages Claims / Principal Judgment After Hearing in the Supreme Court of New South Wales, Common Law Division
Outcome
Judgment for each defendant against the plaintiff; the plaintiff to pay the defendants' costs.
Legal Topics
["solicitors' Negligence" 'settlement Advice' 'offer to Compromise' 'loss of Opportunity' 'breach of Fiduciary Duty' "advocates' Immunity" 'contributory Negligence' 'deceit and Exemplary Damages Claims']
['torts' 'professional Negligence' 'equity' 'civil Procedure' 'costs'] ["solicitors' Negligence" 'settlement Advice' 'offer to Compromise' 'loss of Opportunity' 'breach of Fiduciary Duty' "advocates' Immunity" 'contributory Negligence' 'deceit and Exemplary Damages Claims']

Case Brief

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Procedural Posture

Torts – Professional Negligence Claim Against Legal Practice Concerning Settlement Advice and Advice to Bring and Maintain Deceit and Exemplary Damages Claims / Principal Judgment After Hearing in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["Whether the defendants negligently advised the plaintiff in relation to Westpac's offer to compromise dated 2 December 2011." 'Whether the defendants negligently advised or breached fiduciary duties in relation to the global offer dated 15 December 2011.' 'Whether the defendants negligently advised the plaintiff to bring and maintain claims in deceit and for exemplary damages in the Federal Court proceedings.' 'Whether any alleged breach caused the plaintiff loss, including loss of an opportunity to settle on more favourable terms.' "Whether advocates' immunity applied to the decisions to institute and maintain the deceit and exemplary damages claims." 'Whether the plaintiff was contributorily negligent.']

Ratio Decidendi

The plaintiff failed to establish any of his claims. The Court preferred Mr Gillis's evidence, supported by contemporaneous documents, that the plaintiff was informed of the offers, received advice about their effect and costs consequences, and instructed rejection or counter-offers. The settlement advice, although confident, was not negligent when assessed prospectively and in context, and causation was not proved because the plaintiff would not have accepted the offer to compromise or his component of the global offer. There was no breach of fiduciary duty in relation to the global offer because there was no actual duty-duty conflict preventing Mr Gillis from advancing each client's...

Court Disposition

Judgment for each defendant against the plaintiff; the plaintiff to pay the defendants' costs.

Orders

  • ['Judgment for each defendant against the plaintiff.' "The plaintiff to pay the defendants' costs." 'Liberty to apply on a date to be arranged with my associate.']