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PLAINTIFF SUES HIS FORMER LAWYERS FOR NEGLIGENCE RESULTING IN LOSS

Falcon v Makin & Kinsey Solicitors Pty Ltd & Anor [2021] VSC  171  (9 April 2021)

This is a case filed by the plaintiff against his former lawyers for ceasing to act for him resulting in a loss.

Facts:

Mr Falcon retained a firm of solicitors, Makin & Kinsey, to represent him in a dispute (Batsakis proceeding) with an architect he had engaged for property development in Frankston.  He now sues that firm and its principal, Mr Makin for negligence.

Central to his complaint against the solicitors is the fact that after the mediation they filed a Notice of Ceasing to Act and did not notify him that they were doing so until after he had left Australia.  As a result of him having left Australia, he says he was unable to engage in alternative representation.  This compelled him to end the proceeding against the architect without recovering any damages.  He says he has lost the opportunity of obtaining damages against the architect by the timing of his solicitors’ notice of ceasing to act.

Issue: Did the plaintiff establish that the defendants were negligent?

Held:

The statement of claim pleads a cause of action in negligence and breach of contract. It alleges that Mr Falcon was ‘unjustly and unfairly deprived of an opportunity to properly defend himself in the [Batsakis] proceeding because he was overseas’.  Makin & Kinsey were not retained to act on behalf of Mr Falcon in the costs dispute.  Makin & Kinsey determined a conflict of interest in the costs dispute because there was a dispute over who had retained the barrister, and so they could not continue to act in the Batsakis proceeding. The manner of notification to Mr Falcon did make it more difficult for him to arrange alternate representation and was not optimal from a client management perspective. Mr Falcon does not allege that he should have been told prior to the mediation of the possibility that the solicitor might cease to act, only that he should have been told while he was in Australia.

The action of the solicitor did not compromise the Batsakis proceeding.  It was not accompanied by any failure to advise of a deadline or the need to take action to preserve rights that might amount to negligence.  No rights of Mr Falcon were lost by the cessation of representation.  Appropriately a solicitor from Makin & Kinsey attended the next court directions so that the court was aware that new solicitors would need to come onto the record.  Makin & Kinsey’s action did not jeopardize the likelihood that on 20 July 2018 the Court would set a timetable for preparation for trial and a trial date for an appropriate time in 2019.  In short, the court does not accept that by ceasing to act the solicitors did deprive Mr Falcon of the opportunity to pursue his claim.

Conclusion: For the reasons above-mentioned, Mr. Falcon has not made out his claim.

 

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