Bird v Ford [2014] NSWCA 242

Bird v Ford [2014] NSWCA 242

The solicitor did not breach duty of care or retainer in advising the appellant and her husband regarding the prospects of success in the Equity Division litigation, given the unsettled state of Australian law and the arguability of implied contractual terms in common law jurisdictions. There was no requirement for the solicitor to advise that the proceedings were manifestly hopeless.

Jurisdiction
Australia
Judgment Date
28 July 2014
Procedural Posture
Appeal / Judgment – Appeal From Common Law Division Decision Dismissing Professional Negligence Proceedings
Outcome
Appeal dismissed with costs.
Legal Topics
['negligence' "solicitors' Duty of Care" 'breach of Retainer' 'procedural Fairness' 'contractual Implied Terms']
['torts' 'professional Negligence'] ['negligence' "solicitors' Duty of Care" 'breach of Retainer' 'procedural Fairness' 'contractual Implied Terms']

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Procedural Posture

Appeal / Judgment – Appeal From Common Law Division Decision Dismissing Professional Negligence Proceedings

Legal Issues

  1. 1 ['Whether solicitors breached duty of care or retainer in advising on prospects of success' 'Whether proceedings against school were manifestly hopeless or misconceived' "Whether advocates' immunity applied" 'Whether misleading or deceptive conduct under Fair Trading Act 1987 (NSW) occurred' 'Whether contractual implied term required procedural fairness']

Ratio Decidendi

The solicitor did not breach duty of care or retainer in advising the appellant and her husband regarding the prospects of success in the Equity Division litigation, given the unsettled state of Australian law and the arguability of implied contractual terms in common law jurisdictions. There was no requirement for the solicitor to advise that the proceedings were manifestly hopeless.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "Appellant to pay the respondents' costs of the appeal."]