Kendirjian v Lepore [2014] NSWDC 66

Kendirjian v Lepore [2014] NSWDC 66

Applying Donnellan v Woodland, any failure to disclose or properly advise on the settlement offer necessarily affected the conduct of the case in court by causing the proceedings to continue, and was therefore covered by advocate's immunity. The immunity from suit also barred claims framed in negligence, contract including agency, or breach of fiduciary duty. Because the pleaded claim was clearly untenable, the proceedings were dismissed under Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 and leave to file the proposed amended pleading would not be granted.

Jurisdiction
Australia
Judgment Date
16 May 2014
Procedural Posture
Civil Professional Negligence Proceedings Against Solicitor and Counsel / Interlocutory Applications for Summary Dismissal and to Amend Pleadings
Outcome
Proceedings dismissed; plaintiff ordered to pay the defendants' costs.
Legal Topics
["advocate's Immunity From Suit" 'settlement Advice' 'disclosure of Settlement Offers' 'breach of Fiduciary Duty' 'summary Dismissal' 'amended Pleadings']
['professional Negligence' 'civil Procedure' 'legal Profession'] ["advocate's Immunity From Suit" 'settlement Advice' 'disclosure of Settlement Offers' 'breach of Fiduciary Duty' 'summary Dismissal' 'amended Pleadings']

Case Brief

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Procedural Posture

Civil Professional Negligence Proceedings Against Solicitor and Counsel / Interlocutory Applications for Summary Dismissal and to Amend Pleadings

Legal Issues

  1. 1 ["Whether advocate's immunity extends to advice on settlement and disclosure of settlement offers." "Whether pleading a cause of action for breach of fiduciary duty avoids advocate's immunity." 'Whether the matter is appropriate for summary dismissal.']

Ratio Decidendi

Applying Donnellan v Woodland, any failure to disclose or properly advise on the settlement offer necessarily affected the conduct of the case in court by causing the proceedings to continue, and was therefore covered by advocate's immunity. The immunity from suit also barred claims framed in negligence, contract including agency, or breach of fiduciary duty. Because the pleaded claim was clearly untenable, the proceedings were dismissed under Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 and leave to file the proposed amended pleading would not be granted.

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendants' costs.

Orders

  • ['The proceedings be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005.' "The plaintiff to pay the defendants' costs."]