Liprini v Hale

Court of Appeal (NSW)|2020-03-06|Before: Macfarlan JA, McCallum JA, Simpson AJ

Introduction

This appeal arises out of the failure on the part of Dr Allan Liprini (Allan), the brother of the appellant, Mr Kevin Liprini (Kevin), to pay to the appellant sums totalling $770,000, being the sum of $750,000, which Allan agreed to pay to Kevin by way of compromise of claims made or to be made by Kevin under the Family Provision Act 1982 (NSW) (the Act) in respect of the estates of their deceased parents, together with the sum of $20,000 for costs. Kevin claims that, but for negligence or breach of contract on the part of the respondents, a firm of solicitors (the Solicitors), he would have recovered the full amount of $770,000 but that, as a result of their alleged negligence or breach of contract, he only recovered a part of that sum.

The Dispute

Kevin and Allan are the sons of the late James Liprini (James) and the late Anne Liprini (Anne). Kevin was born in 1947 and Allan was born in 1948. James died in January 2005 and Anne died in November 2006. By his last will, James appointed Allan as his executor, devised to Allan a property in Helensburgh and gave the residual of his estate to Anne. By her last will, Anne appointed Allan as her executor and left the whole of her estate to Allan. Probate of the will of James was granted to Allan on 2 August 2005 and probate of Anne's will was granted to Allan on 9 July 2007.
In June 2005, Kevin consulted the Solicitors with respect to the absence of any provision for him in James' will. After consulting with counsel (Kevin's Counsel), Kevin was advised that, since he had received a gift of $1 million from his parents while they were alive, his case for provision under the Act was very weak, although he had some prospects of success. On 18 July 2006, proceedings under the Act were commenced on behalf of Kevin seeking provision out of the estate of James.
In January 2007, the Solicitors wrote to Allan's solicitors inquiring whether an application for probate had been made in respect of Anne's estate. In March 2007, the Solicitors were notified that Allan had lodged an application for probate of Anne's will. In April 2007, Kevin instructed the Solicitors to commence proceedings under the Act making a claim for provision for him in respect of Anne's estate. In May 2007, Kevin's Counsel advised the Solicitors that proceedings should be commenced seeking provision under the Act in respect of Anne's estate.
On 27 July 2007, Allan's solicitors told the Solicitors that they were no longer instructed to act on his behalf. On 31 July 2007, the Solicitors wrote to Allan requesting a copy of the grant of probate in respect of Anne's estate and informing Allan that Kevin intended to commence proceedings under the Act seeking provision from Anne's estate once probate was granted. By that time, the estate of James has been fully administered.
On 3 September 2007, the Solicitors received a letter from Kevin's Counsel concerning a directions hearing on that day in relation to the claim in respect of the estate of James. The letter indicated that Allan was in financial difficulty and wished to make an interim distribution of $20,000 from the estate of James and that it had been suggested on behalf of Allan that a mediation take place. On 4 September 2007, the Solicitors wrote to Kevin advising him to consent to the proposed distribution of $20,000 to Allan and raising the possibility of mediation. Kevin responded by saying that he wanted a split of 50/50 on all properties and cash and that, if Allan was to receive an interim distribution, he wanted the same amount.
It appears that the Solicitors were unaware that probate of Anne's will had been granted to Allan since, on 24 September 2007, the Solicitors told Kevin's Counsel that Kevin was still waiting for Allan to obtain probate of Anne's will. On the following day, a consent order was made for the proceedings in respect of the estate of James to be fixed for mediation on 6 December 2007.
On 23 November 2007, a telephone conference took place during which Kevin's Counsel and the Solicitors advised Kevin that it was unlikely that he would achieve a 50 per cent share of the combined estates and that he should settle for between $100,000 and $150,000. On 26 November 2007, Kevin told the Solicitors that he would not accept $150,000 and would prefer to mediate. On 27 November 2007, the Solicitors wrote to Kevin confirming the advice given on 23 November 2007.
On 5 December 2007, Allan's solicitors wrote to the Solicitors informing them, for the first time, that probate had been granted in respect of Anne's will. At that stage, no proceedings had been commenced under the Act on behalf of Kevin in respect of Anne's estate.
A Court ordered mediation took place on 6 December 2007. Kevin was represented by the Solicitors and by Kevin's Counsel. During the course of the mediation, Allan's legal representatives told the Solicitors that Allan was having a nervous breakdown. In the event, all parties to the mediation signed short minutes of proposed orders that were drafted by Kevin's Counsel. Order 1 was that provision be made in favour of Kevin out of the estate of James in the sum of $750,000 and that his costs as agreed in the sum of $20,000 be paid out of the estate of James, making a total of $770,000 (the Settlement Sum). It was also proposed that an order be made that Allan's costs be paid out of the estate of James on an indemnity basis. The short minutes contained a note that those orders were agreed by the parties in contemplation of a claim under the Act by Kevin against Anne's estate and Kevin agreed, if called upon to do so, to execute a deed releasing Allan as executor of Anne's estate from any claim under s 7 of the Act. Immediately following the mediation, orders were made in accordance with the short minutes of order.
The period of 28 days referred to in the orders expired on 3 January 2008. Kevin did not receive the Settlement Sum from Allan by that time. On 11 January 2008, Allan's solicitors wrote to the Solicitors acknowledging that the Settlement Sum was due to be paid 28 days after the orders were made at the mediation and that they had instructed Allan to organise payment. On 17 January 2008, the Solicitors wrote to Allan's solicitors saying that judgment would be enforced by execution unless payment of the Settlement Sum was made.
On 10 July 2009, Nicholas J declared that, on their true construction, the effect of the orders made on 6 December 2006 was that Allan would be personally liable for the payment to Kevin of the two sums of $750,000 and $20,000. His Honour also ordered that Allan was personally liable to pay to Kevin the Settlement Sum together with interest from the estates of James and Anne.
Thereafter, various steps were taken by or on behalf of Kevin to enforce payment of the Settlement Sum. Bankruptcy notices were served, appeals were filed and a sequestration order was made in respect of Allan's estate. Ultimately, Kevin recovered no more than $458,764 from the estate of the bankrupt Allan.

The Claim Against the Solicitors

Kevin then commenced proceedings in the Common Law Division against the Solicitors. On 4 April 2019, for reasons published on that day, a judge sitting in the Common Law Division (the primary judge) ordered that the proceedings be dismissed and directed the entry of judgment for the Solicitors. Her Honour ordered Kevin to pay the Solicitors' costs of proceedings. Kevin now appeals to this Court from the orders made by the primary judge.

The Appeal

The issues raised in the appeal may be summarised as follows:

whether there was a breach of contract or breach of duty on the part of the Solicitors in not commencing, prior to the mediation on 6 December 2007, proceedings seeking provision from Anne's estate, and whether there was any risk of harm by reason of the Solicitors not commencing such proceedings;
whether any breach of contract or duty in failing to commence proceedings prior to the mediation caused any loss to Kevin;
whether there was any breach of contract or breach of duty in the drafting of the orders agreed upon at the mediation;
whether any such breach of contract or duty in the drafting of the orders caused any loss to Kevin;
whether the conduct in drafting the consent orders had a functional connection with the judicial determination of the registrar who conducted the mediation and made the orders, such that advocates' immunity applied to the conduct of the Solicitors at the mediation; and
whether the value of the chance lost by Kevin is nil and whether damages relating to the enforcement of his rights are recoverable.

The Solicitors also relied on a notice of contention filed on 27 August 2019. They assert that Kevin's claim is an apportionable claim for the purposes of Pt 4 of Div 6 of the Civil Liability Act 2002 (NSW) (the Liability Act). Accordingly, they say, if they are held liable to Kevin, Kevin's Counsel and Allan are concurrent wrongdoers within the meaning of s 34 of the Liability Act. Therefore, they say, any liability on their part should be reduced, pursuant to s 35 of the Liability Act, to nil or to an amount reflecting the proportion of the damage or loss that the Court considers just having regard to the extent of their responsibility for the alleged damage or loss.
I have had the opportunity of reading in draft form the proposed reasons of Macfarlan JA and McCallum JA. I have formed a view as to the outcome of the appeal similar to that of McCallum JA and different from that reached by Macfarlan JA.

Failure to Commence Proceedings

I would be disposed to conclude that the failure of the Solicitors to commence proceedings under the Act in relation to Anne's estate constituted a breach of contract or breach of duty on the part of the Solicitors. However, even if there were such a breach, I do not consider that there was a relevant causal connection between the loss claimed by Kevin and the failure to commence proceedings in respect of Anne's estate prior to the mediation. The mediation resulted in a binding agreement with Allan. Allan failed to perform his obligations. There is no reason to conclude that, had proceedings been commenced in respect of Anne's estate prior to the mediation, the position would have been any different.
That is to say, the mere fact of prior commencement of proceedings under the Act in respect of Anne's estate of itself would have made no difference to Kevin's capacity and ability to enforce the promise made by Allan. Even if such proceedings had been commenced, further orders would have been necessary in order to afford Kevin the ability to enforce payment of the Settlement Sum by Allan. For example, it would have been possible, since all necessary parties were present at the mediation, to have included orders that would have given Kevin an immediate claim against the assets of Anne's estate. Kevin's loss was not caused by the failure to commence proceedings under the Act in respect of Anne's estate but the failure to include in the proposed short minutes of order, orders that would have given Kevin an entitlement to enforce Allan's promise against the assets of Anne's estate and subsequent steps to enforce the settlement against the assets of Anne's estate.
Kevin had the opportunity in January 2008, and beyond, to seek relief, both urgent and final, under UCPR r 54.3, to enforce his order for provision. He ultimately obtained an order under UCPR r 54.3. The orders of Nicholas J included a declaration to the effect of that the orders bound both estates and also bound Allan personally, indicating that there was a family provision order made in respect of Anne's estate. Notwithstanding that no proceedings had been commenced with respect to Anne's estate before the mediation, a binding settlement was reached. While different steps could have been taken after the consent orders were made, the manner of enforcement of the mediation was not a complaint made by Kevin.

Drafting of the Orders

Whether or not there is any substance in Kevin's complaint that the orders agreed at the mediation did not include provision for enforcement against the assets of Anne's estate, and that constituted a breach of duty or breach of contract on the part of the Solicitors, advocates' immunity applied in the circumstances of a mediation before a registrar of the Court and the formulation of orders to be made by the registrar in consequence of the compromise reached at the mediation. Clearly enough, for the reasons proposed by Macfarlan JA, the Solicitors are entitled to advocates' immunity in relation to any deficiency in the drafting of the orders to give effect to the compromise.

Apportionable Claim

In relation to the notice of contention, it is relevant that Kevin's Counsel was originally joined as a defendant in the proceedings. However, a compromise was reached between Kevin and his counsel involving a payment of $50,000, credit for which is given by Kevin to the Solicitors.
Under s 35 of the Liability Act, in any proceedings involving an apportionable claim, the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the Court considers just, having regard to the extent of the defendant's responsibility for the damage and loss. The Court may not give judgment against the defendant for more than that amount. Under s 34, an apportionable claim includes a claim for economic loss in an action for damages, whether in contract, tort or otherwise, arising from a failure to take reasonable care. A concurrent wrongdoer in relation to such a claim is a person who is one of two or more persons whose acts or omissions, or act or omission, caused, independently of each other or jointly, the damage or loss that is the subject of a claim.
I do not consider that ss 34 and 35 have application in the way contended for by the Solicitors in relation to the claim against Allan. The loss or damage claimed by Kevin is the loss of an opportunity to enforce the contractual obligation undertaken by Allan by reason of the settlement reached at the mediation. No act or omission on the part of Allan caused the loss of the opportunity of including, in the settlement agreement, terms that would have given Kevin a remedy in rem against the assets of Anne's estate.

Conclusion

I would order that the appeal be dismissed and that Kevin pay the Solicitors' costs of the appeal.

Amendments 24 March 2021 - Amendment of typographical error: removal of "not" after "had" in [34] second sentence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2021

Family Provision Act 1982(NSW)

Patents Act 1900(Cth)

Solicitors: ITC Law Pty Ltd (Appellant) Sparke Helmore Lawyers (Respondents) File Number(s): 2019/129821 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 355 Date of Decision: 04 April 2019 Before: Simpson AJ File Number(s): 2013/355003

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant and Dr Allan Liprini are brothers. Their father died in 2005 and appointed Dr Liprini as his sole executor. The appellant sought provision out of the father's estate under the Family Provision Act 1982 (NSW) ("FPA"). In 2006 their mother died and also named Dr Liprini as her sole executor. The respondents (RHS) were the appellant's solicitors. On 6 December 2007 the appellant, Dr Liprini and their representatives met before a Court registrar to mediate the appellant's FPA claim against his father's estate and a foreshadowed claim by him against his mother's estate. A settlement was reached and the registrar made orders as sought by the parties. The orders provided for the appellant to receive $770,000 in provision out of his father's estate and included a notation that the orders were agreed in contemplation of a claim against his mother's estate. The appellant recovered $458,765 in enforcing the orders. The proceedings from which the present appeal was brought concerned a claim by the appellant against RHS for breach of a contractual or tortious duty of care. The appellant's primary case was that RHS breached its duty of care by failing prior to the mediation to commence FPA proceedings against the mother's estate. The appellant's alternative case was that RHS had been negligent in the drafting of and advising about the orders made at mediation. The primary judge rejected both the appellant's claims on the basis of there being no breach of duty and no causation. Her Honour also rejected the alternative claim on the additional basis that RHS was protected by advocate's immunity. Her Honour did not find it necessary to deal with RHS's defence of proportionate liability, which alleged that the appellant's barrister and Dr Liprini were concurrent wrongdoers for the purposes of the Civil Liability Act 2002 (NSW) ("CLA"). The principal issues on appeal were: In relation to the primary claim: (1) Whether RHS breached its duty of care; (2) Whether any such breach caused the appellant loss; (3) If the appellant was successful, to what damages he was entitled; (4) Whether the barrister and Dr Liprini were concurrent wrongdoers. In relation to the alternative claim: (5) Whether RHS was covered by advocate's immunity. The Court (by majority comprising McCallum JA and Emmett AJA) dismissed the appeal: In relation to Question 1 (breach): (Per Macfarlan JA): There was a not insignificant, foreseeable risk of harm that if clear and readily enforceable orders against the mother's estate were not obtained as a result of any settlement achieved at the mediation, any FPA provision might be difficult to recover: [64]. This risk arose from circumstances that virtually all of the appellant's parents' assets were held by his mother's estate, and that Dr Liprini was in financial difficulty and was ill-disposed towards the appellant: [63], [66]. An obvious and easily-adopted method of avoiding these risks was to commence proceedings against the mother's estate prior to the mediation: [67]. RHS gave no adequate explanation for not doing this: [71]. (Emmett AJA was disposed to conclude that there was a breach: [161]). (Per McCallum JA, contra): The central issue is the vexed question of risk of harm: [118]. It is not clear what risk is said to have existed, or at what point it arose, against which the precaution of commencing proceedings against the mother's estate should have been taken: [126], [131]. The risk of harm cannot be analysed by taking the settlement sum agreed to by Dr Liprini as a fixed premise and confining the prospective analysis to the risk that, absent proceedings against the mother's estate having already been commenced, that agreement would not be readily enforceable: [134]. The primary judge was also correct to conclude that there was no breach of duty based on the evidence of the experts: [135]. Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42; McKenna v Hunter & New England Local Health District (2013) Aust Torts Reports 82-158; [2013] NSWCA 476; Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, referred to. In relation to Question 2 (causation): (Per McCallum JA and Emmett AJA): There was no causal connection between the negligence asserted and the loss claimed: [137], [161]. A binding settlement was reached at the mediation: [139], [161]. The appellant had the opportunity to enforce the settlement by obtaining an order under r 54.3 UCPR, which he ultimately did: [139], [163]. It may be the case that different enforcement steps could have been taken but that formed no part of the appellant's case in negligence: [139], [163]. (Per Macfarlan JA, contra): The deleterious effect on the appellant's interests of the absence of extant proceedings against the mother's estate was apparent immediately after agreement had been reached at the mediation: [76]. The best that could be done was the inclusion of the note in para [4] of the orders, but there was no clear method of enforcing this: [76]. It can readily be inferred that at the mediation an order for provision would have been made against the mother's estate if it had been possible: [77]. The appellant then would have had a realistic prospect of being able to enforce that order promptly so as to recover the balance of the settlement sum: [88]. Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135; Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18, referred to. In relation to Question 3 (damages): (Per Macfarlan JA): With assets in the mother's estate well in excess of the appellant's claim and an immediately enforceable order against Dr Liprini as executor of that estate, the prospects of the appellant recovering the agreed amount would have been high: [94]. An allowance must however be made for contingencies such as the legal advice being less than appropriate and rapid action by Dr Liprini to thwart prompt enforcement: [97]-[98]. A deduction of 20% should therefore be made from the appellant's claimed damages: [99]-[100]. Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4, referred to. (Per McCallum JA): The primary judge was correct to conclude that Dr Liprini would have acted precisely as he did and that there was no chance the appellant would have recovered the entirety of the $770,000: [141]. (Emmett AJA did not decide this question). In relation to Question 4 (proportionate liability): (Per Macfarlan JA): RHS did not proffer any substantive argument in support of its contention that the barrister was a "wrongdoer": [103]. The Court should be slow to make adverse findings in the absence of a carefully put argument to support them: [103]. On the evidence, the barrister advised RHS to commence FPA proceedings against the mother's estate and it was not his fault that that did not occur: [104]. Dr Liprini also was not shown to be a "concurrent wrongdoer": [106]. The loss for which the appellant sued in the present proceedings was a different loss to that caused by Dr Liprini: [107]. The former is the loss of the right to claim provision under the FPA from the mother's estate, and the latter is the loss resulting from the non-payment of Dr Liprini's debt: [107]. Trajkovski v Simpson [2019] NSWCA 52; Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10, referred to. (Per Emmett AJA): The loss or damage claimed by the appellant is the loss of an opportunity to enforce the settlement: [167]. No act or omission on the part of Dr Liprini caused the loss of opportunity: [167]. (McCallum JA found it unnecessary to decide: [141]). In relation to Question 5 (advocate's immunity): (Per Macfarlan JA, McCallum JA at [140] and Emmett AJA at [164] agreeing): The Registrar could not embody in court orders the agreement that arose from the mediation without the exercise of an independent discretion: [113]. The Registrar actively participated in the mediation and acquired a detailed knowledge of the circumstances: [114]. Through the Registrar, the Court gave its imprimatur to this agreement: [113]. Therefore RHS's alleged breaches were covered by advocate's immunity because they were intimately connected with the resolution of the proceedings by court decision: [113]. Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16; Bartlett v Coomber [2008] NSWCA 100, referred to.

Advocate's immunity

Her Honour then addressed RHS's defence of advocate's immunity. Her Honour referred to Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 as identifying that "for the work of an advocate to attract the immunity it must have an 'intimate connection' with the conduct of the case in court such as to affect its outcome by judicial decision" (Judgment [182]). Her Honour continued: "[183] The majority in the High Court held that the immunity does not extend to acts or advice of the advocate which do not move the litigation towards a determination by a court. Specifically, the immunity does not extend to advice that leads to a settlement agreed between the parties: see [38]-[39]."
Her Honour concluded that advocate's immunity did not provide RHS with a defence to the appellant's first basis of claim because "[t]he asserted breach is sufficiently removed from the outcome of the proceedings as not to be 'intimately connected' with the conduct of the case and the outcome" (Judgment [190]).
Her Honour found otherwise in respect of the appellant's alternative case, holding that it did have the necessary 'intimate connection', particularly "when regard is had to the role of the Court, constituted by the Registrar, in the making of the orders" (Judgment [191]). Her Honour referred in this respect to the decision of this Court in Bartlett v Coomber [2008] NSWCA 100 holding that the Court is required to be satisfied of the appropriateness of making FPA orders, notwithstanding that the parties may be agreed that they should be made.

Breach of duty

As is apparent from the terms of s 5B of the CLA, and from the primary judge's judgment, a plaintiff in a case such as the present needs to establish the existence of a requisite risk of harm and that a reasonable person in the position of the defendant would have taken identified precautions against that risk. Despite its heading ("Duty of Care"), s 5B is concerned with breach of duty (Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]).
On 25 September 2007 consent orders were made in the appellant's FPA proceedings concerning his father's estate fixing a mediation to be conducted before a Registrar of the Court on 6 December 2007. RHS was aware at that time, and had been aware for some months, that virtually all of the appellant's parents' assets were held by the estate of his mother, and not that of his father. Moreover RHS had been told earlier in September 2007 that Dr Liprini's counsel had informed the appellant's counsel that Dr Liprini was no longer working and was in financial difficulty. It had also been told by its client early in September 2007 that Dr Liprini did not want to be in the same room as him because he said that the appellant intimidated him.
These matters gave rise to a not insignificant, foreseeable risk that if clear and readily enforceable orders against the mother's estate were not obtained as a result of any settlement achieved at the mediation, any FPA provision that Dr Liprini agreed should be made in favour of the appellant might be difficult to recover.
The fact that the proceedings to be mediated related only to the relatively worthless father's estate and that no proceedings had been commenced in relation to the valuable mother's estate gave rise to a not insignificant risk that such clear and readily enforceable orders might not be obtained. If there were to be no proceedings extant against the mother's estate at the time of the mediation (as in fact occurred) it is difficult to see how it could have been expected that the Registrar (or any other officer of the Court) could make the straightforward FPA order in relation to the mother's estate that the appellant wanted. Anything less, such as an order against Dr Liprini in his personal capacity, could not have been expected to be adequate in light of the information, albeit unsubstantiated, that RHS had that Dr Liprini was in financial difficulty.
The fact that RHS might have contemplated that, by some means or other, if the parties agreed on an overall settlement, that orders could be crafted which might have an equivalent effect to a straightforward FPA order against the mother's estate does not dispel the risks to which I have referred. RHS was on notice from what its client had said to it that Dr Liprini was ill-disposed towards his brother and might therefore take advantage of any means presented to him, by for example orders which were not clear and readily enforceable, to attempt to deny the appellant the fruits of any agreement reached at the mediation.
There was an obvious and easily-adopted method of avoiding these risks, namely, the commencement prior to the mediation of proceedings in relation to the mother's estate. On three occasions (being 3 April, 11 April and 31 May) RHS's client, the appellant, instructed it to do this. As well, on 8 May 2007 counsel briefed by RHS, Mr Lawson, advised RHS that FPA proceedings in relation to the mother's estate should be commenced once probate had been granted. RHS informed Mr Lawson on 24 September 2007 that it was still waiting for that probate to be granted. RHS should however have known that it was granted over two months earlier. When RHS was not advised of its grant notwithstanding RHS's awareness that an application for the grant had been made on or prior to 22 March 2007, RHS should have searched at the Court and ascertained that the grant had been made. This was especially so when RHS was aware that its client's claims were to be mediated in December with a view to the appellant obtaining an FPA order against his mother's estate.
The expert witnesses called by the parties gave evidence consistent with these conclusions.
First, Mr Richard Neal, called by the appellant gave evidence that commencement of FPA proceedings against the mother's estate was a "no-brainer". He said that "[i]t should have been done earlier and certainly should have been done before the mediation".
Secondly, Ms Pamela Suttor, who was called by RHS, agreed with this point and agreed that "any competent practitioner" would have caused proceedings to be commenced before the mediation. Ms Suttor opined that prior to the mediation RHS should have followed up Dr Liprini's solicitors about whether probate had been granted and, if not informed that it had been, conducted a search at the Court. Mr Neal said this as well. I add that in any event Mr Sommerville agreed in cross-examination that proceedings could have been commenced even before a grant of probate.
In his evidence, Mr Sommerville gave no adequate explanation for not commencing proceedings before the mediation. He said in his affidavit that he considered that RHS was not in a position to commence proceedings because it did not have up-to-date financial information from the appellant. In cross-examination he however agreed that that statement was "poor wording" and in reality he was simply intending to say that it was his practice to file an affidavit by the plaintiff with the initiating summons in FPA claims. He then had to concede that Mr Lawson had advised him that all that was necessary to be filed was a solicitor's affidavit annexing the appellant's affidavit already filed in the proceedings against his father's estate.
Mr Sommerville also agreed in cross-examination that as at the date of his 8 May 2007 conference with Mr Lawson, commencement of proceedings against the appellant's mother's estate, as Mr Lawson advised, was "crucial to protecting [the appellant's] rights" and that Mr Lawson advised that RHS should "get [both sets of proceedings] listed and send [them] off for mediation".
It follows from the above that I respectfully disagree with the primary judge's conclusion that there was "no risk of harm in proceeding to mediation in respect of James Liprini's estate without proceedings in relation to Anne Liprini's estate having been commenced" (see [47] above). As I have said, in my view there was a not insignificant risk that if the mediation produced an agreement between the parties, the appellant would not obtain a clear and readily enforceable order.
Both at first instance and in his written submissions on appeal the appellant failed to articulate his case on risk in any satisfactory manner. His counsel elicited from Mr Sommerville in cross-examination and relied in address on the proposition that commencement of proceedings against the mother's estate was "crucial to protecting" the appellant's rights. Likewise he elicited evidence to similar effect from both experts. Beyond that, the appellant's case assumed, without stating expressly, that the reason for the correctness of this proposition was that if the appellant was to obtain the straightforward FPA order against his mother's estate that he sought (being in the same terms as the order he did in fact obtain against his father's estate), there would have to be proceedings on foot in relation to that estate in which the order could be made. If that were not the case, complications and delays in obtaining a clear and enforceable order against the appellant's potentially disputatious brother were likely to arise, as they in fact did.
The only risk of harm that the primary judge found existed was that Dr Liprini would fail to honour the obligations he assumed at the mediation. This, her Honour said, was not one related to the absence of FPA proceedings against the mother's estate - it was a risk that existed irrespective of whether those proceedings were commenced, it eventuated and it was the cause of the appellant's loss. Again with respect, I disagree. Although there was always a risk that Dr Liprini would not honour the agreement, that was precisely why it was important for RHS to obtain readily enforceable orders for the appellant. In acting for a claimant, a solicitor must take reasonable steps to ensure that his or her client is able to obtain the fruits of what the solicitor is instructed to seek in litigation or by agreement. In a context such as the present, a solicitor would have been remiss if, for example, he or she did not attempt to dissuade the client from accepting simply a handshake agreement. Clearly the solicitor here had to take reasonable steps to put the appellant in a position to obtain a clear and enforceable FPA order against his mother's estate.

Causation

The deleterious effect on the appellant's interests of the absence of extant proceedings against the mother's estate was apparent immediately after agreement had been reached at the mediation on the settlement sum. At that point, as recorded by Mr Sommerville in his evidence, the opposing counsel turned to discuss with each other how an order could be made "which will bind both estates". After Mr Rush, the barrister for Dr Liprini, consulted by telephone with a senior counsel in his chambers as to how this might be achieved, counsel at the mediation agreed on the form of short minutes of order referred to in [33] above and the Registrar before whom the mediation was conducted made the orders by sealing them with the Court seal. As no proceedings against the mother's estate were on foot, of necessity the orders did not include an order under the FPA for provision from that estate. The best that could be done was the inclusion of the note in para [4] of those orders (see [33] above) but there was no clear method of enforcing this, as illustrated by the tortuous events that ensued.
Order 1 was a straightforward order for provision from the father's estate. This was made in the FPA proceedings against the father's estate, as demonstrated by the Court heading to the orders. Such an order could not have been made in relation to the mother's estate in the absence of extant proceedings against it. It can however readily be inferred that such an order would have been made if it had been possible. This can be inferred from the terms of the discussion between counsel referred to in the last preceding paragraph and the undisputed fact that the agreement was intended to encompass both the mother's and father's estates. As well Mr Sommerville conceded in cross-examination that that would likely have occurred.
What occurred in January 2008 and beyond revealed the inadequacy from the appellant's perspective of what he had obtained at the mediation. On 17 January 2008 RHS conveyed a threat to LawPartners, Dr Liprini's solicitors, "to execute the judgment" but by letter of 21 January 2008 to its client it advised the appellant that it could not "execute Judgment against [the Sylvania Waters] property" because it formed part of the mother's estate and "we only have orders against your brother as the Executor of the Estate of your late father" (see [35] above).
Later, Mr Lawson suggested bringing the contempt proceedings that were the subject of Brereton J's judgment of 11 April 2008 and then the proceedings referred to at [39] above which were disposed of by Nicholas J on 10 July 2008 were brought. Further litigation ensued over the following years until the appellant's eventual receipt of $458,764 from Dr Liprini's bankrupt estate.
It is apparent from the description above of what occurred in January and February 2008 that if the appellant had then had the benefit of a clear order for provision against his mother's estate, straightforward steps to enforce it would have been taken. This was supported by the expert evidence of Mr Neal and Ms Suttor and was admitted by Mr Sommerville of RHS in cross-examination.
RHS was well aware of the appellant's wish to have the settlement enforced and it advised the appellant promptly, with the assistance of Mr Lawson's advice, what the appellant's position was. The only course of action that Mr Lawson could see was available in light of the terms of the mediation orders was to commence the contempt proceedings, which was done on 3 March 2008.
If the appellant had at the mediation obtained a clear order for provision from his mother's estate, he would have had the opportunity in January 2008, and beyond, to seek relief, both urgent and final, under r 54.3 of the UCPR to enforce his order for provision. An alternative would have been an application for an order to do this under s 84 of the Probate and Administration Act 1898 (NSW).
Under that rule the appellant could have sought and obtained orders for preservation of the assets of the mother's estate pending final enforcement of the order he had obtained with Dr Liprini's consent. When their advice was sought as to enforcement measures (as it was), it can be assumed that, if the appropriate order had been obtained at the mediation, the solicitor, RHS, and the barrister, Mr Lawson, would have advised the appellant to seek orders under this rule or s 84 immediately.
There seems to have been no suggestion at first instance, nor was there on appeal, that significant assets of the mothers estate referred to in [15] above were dissipated during or before the couple of months following the mediation when it could be expected that, had the appellant obtained an order for provision at the mediation, the appellant could have taken enforcement action in relation to the estate. I note in this regard that the primary judge said that, speaking of the time of the mediation, "[t]here were adequate funds in the estate of Anne Liprini out of which to meet the agreed payment" (Judgment [145]). RHS quoted this statement in its submissions on appeal, with apparent endorsement. Further, the appellant stated in his written submissions at first instance that there was no reason to suppose that by January 2008 there had been any transfer of money or other assets out of the mother's estate. He stated also that "even by July 2009 [Dr Liprini] still had significant money in the bank and there was the unencumbered real property in the mother's estate". This is also supported by the finding of Nicholas J on 10 July 2009 that the "balance of the mother's estate is largely undistributed".
The appellant alleged in his Amended Statement of Claim that by reason of RHS's breach of duty he lost the opportunity to recover from Dr Liprini the full amount of the agreed settlement sum of $770,000, his actual recovery being $462,498, plus interest. As well he asserted that he lost the opportunity to avoid incurring the losses he suffered in seeking to enforce the settlement.
This Court's decision in Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 and the High Court's decision in Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 refer to the recovery of damages for loss of a commercial opportunity in circumstances where obtaining the benefit of the opportunity had been dependent on the conduct of a third party. The principal issues that arose in those cases do not however arise in the present case as I am satisfied on the balance of probabilities that what the appellant lost was at least a realistic prospect of recovering the full amount of the settlement sum and that if proceedings against the mother's estate had been commenced prior to the mediation, Dr Liprini (who might be argued to have been in a position analogous to the third parties in Mal Owen and Badenach) would have agreed to an order for FPA provision being made from that estate.
In considering causation, the primary judge stated that the appellant's claim was based on the "unsustainable proposition that, but for the failure of RHS to commence proceedings in relation to Anne Liprini's estate prior to the mediation, he would have recovered the whole of the agreed settlement sum" (Judgment [140]). The appellant's claim being however one for loss of a chance it was enough for him to prove that he had a realistic chance of that occurring, with his damages to reflect the possibility or probability of that chance bearing fruit.
Her Honour also said that the proposition was unsustainable "because commencement of proceedings would not have prevented Dr Liprini from defaulting on his obligations" (ibid). The thrust of the appellant's case, which I accept, is however that but for RHS's breach of duty the appellant would have obtained a readily enforceable order against Dr Liprini as executor of the valuable estate of the mother and had a realistic prospect of being able to enforce that order promptly so as to recover the balance of the settlement sum.
Before leaving the issue of causation, it is necessary to refer again to the decision of Nicholas J of July 2009, referred to in [40]-[41] above.
His Honour did not find in that judgment that the mediation orders included an FPA provision order in favour of the appellant in relation to his mother's estate. Rather, he found that the effect of those orders was "consistent with the effect of" an FPA order against the father's estate (at [14]) and that by agreeing to the mediation orders, Dr Liprini "was effectively agreeing to arrange for the provision of the appropriate amounts" (at [28]). His Honour then made the orders sought, the first of which was an order that Dr Liprini pay the legacy of $770,000 agreed at the mediation to be payable in respect of the father's estate and, secondly, a declaration that Dr Liprini was personally liable to his brother for the payment of that sum. The second order, being a declaration of Dr Liprini's personal liability, is not easy to reconcile with the conclusion which Brereton J had reached in April 2008, which Nicholas J referred to (at [13]), that the mediation orders "do not require [Dr Liprini] to do anything". Although Nicholas J described the language of the mediation orders as "plain and unambiguous" (at [20]) they were not that, as evidenced by the difference between his and Brereton J's views.
In summary, I do not regard Nicholas J's views, expressed over a year after the relevant time and apparently inconsistently with those of Brereton J, as contradicting my conclusion that a clear and readily enforceable FPA provision order in relation to the mother's estate was not obtained at the mediation. Nicholas J's judgment did not suggest that it was. His orders related, as to the first, to the father's estate and, as to the second, to Dr Liprini's personal liability to "effectively… arrange for the provision of the" $770,000 to be paid to the appellant. This was far from being a conventional FPA provision order.

Damages

As I have indicated, in a loss of commercial opportunity contract claim, damages are to "be ascertained by reference to the degree of probabilities, or possibilities, inherent in the plaintiff's succeeding had the plaintiff been given the chance which the contract promised" (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 349).
The appellant's primary claim was for the difference between the settlement sum of $770,000 and the amounts totalling $458,764 that he subsequently recovered (the difference being $311,236), plus interest. He did however accept that his claim should be reduced by 10% to allow for the possibility that he would have been unsuccessful in recovering the entire settlement sum even if RHS had not breached its contract with him. For reasons that the primary judge gave when addressing causation (see [50] above), her Honour concluded that there was "no chance" that the appellant would have recovered the entirety of the $770,000 (Judgment [195]).
As I have differed from her Honour on the issues of breach and causation, it remains for me to assess the percentage prospect of the appellant recovering the entirety of the settlement if there had been no breach. That is an intrinsically difficult and subjective exercise. With money and assets in the mother's estate well in excess of the appellant's claim and an immediately enforceable order against Dr Liprini as executor of that estate, the prospects of the appellant, aided by competent lawyers, in recovering his debt would in my view have been high.
As I have indicated, the appellant, and his lawyers on his behalf, were clearly in January 2008 and thereafter anxious to take prompt enforcement action. In the circumstances as they occurred, they were prevented from taking effective enforcement action only by the absence of the necessary foundation for that, being a clear FPA order against Dr Liprini as executor of the mother's estate.
There is no doubt that at the time of the mediation the mother's estate had assets far in excess of the settlement sum, and there is no reason to believe that those substantial assets were dissipated in the months following the mediation (see [84] above).
An allowance must however be made for contingencies such as the standard of the appellant's legal advice being less than appropriate and, unlike what did occur, rapid action by Dr Liprini to put the relevant assets out of the appellant's reach.
More generally, allowance must also be made for the possibility, albeit limited, that Dr Liprini might otherwise have been able to thwart prompt enforcement of a clear order made by consent for provision for the appellant out of their mother's estate. As a bankruptcy judgment delivered in 2010 evidenced, Dr Liprini became deeply dissatisfied with the mediation settlement (Liprini v Liprini [2010] FMCA 687). Exactly when this occurred is not clear but it appears to have been very soon after the mediation. His conduct indicated that immediately, or almost immediately, he formed the intention not to pay the settlement sum. If the appellant had had a clear order for provision from his mother's estate there is little, if anything, that Dr Liprini could have done to frustrate that provision being obtained.
Taking all of these considerations into account, I would deduct 20% from the appellant's damages and therefore assess his prospects of recovering the settlement sum but for the breach at 80%. I would therefore assess the appellant's damages at 80% of $770,000, minus what the appellant actually received from the bankrupt estate of Dr Liprini. As the appellant acknowledged, he needs also to give credit for the amount of $50,000 he received by way of settlement of a claim he made against Mr Lawson.
The same approach should be taken in respect of the appellant's secondary claim for damages for loss of the opportunity to avoid much of the legal costs that he incurred in attempting to enforce the inadequate orders made at the mediation. He should be allowed 80% of these costs together with interest in respect of both aspects of his claims. As the primary judge did not make any detailed contingent findings concerning quantum it will be necessary to remit the quantification of the appellant's loss to the Equity Division if the parties cannot reach agreement. This Court's orders should afford the parties the opportunity to do that.

Proportionate liability

The primary judge found it unnecessary to deal with RHS's defence of proportionate liability. As a result RHS raised it on appeal by Notice of Contention.
In support of this defence, RHS contended that Mr Lawson, the appellant's barrister, and Dr Liprini were concurrent wrongdoers for the purposes of s 34(2) of the CLA. It argued that as it is implicitly accepted that the appellant's claim is an "apportionable claim", the appellant's damages are to be reduced as specified in s 35(1) of that Act. Those two subsections are in the following terms: 34 Application of Part (2) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. … 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim - (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount.
I do not consider that RHS's contention should be upheld insofar as it relates to Mr Lawson. On appeal RHS gave references to pleadings, the judgment below and its Notice of Contention but did not proffer any substantive argument in support of its contention that Mr Lawson was a "wrongdoer". Although it is unnecessary for an alleged concurrent wrongdoer to be a party to the proceedings, where the person is (as here) not a party, and therefore has no opportunity to defend his or her reputation, the Court should be slow to make adverse findings in the absence of a carefully put argument to support them.
It is sufficient to say that I am not persuaded that Mr Lawson's alleged "wrongdoing" has been established in relation to either of the bases of the appellant's claims. So far as the appellant's primary claim is concerned, Mr Lawson, quite properly, advised RHS on 8 May 2007 that it should commence FPA proceedings against the mother's estate. On the evidence to which this Court was referred, it was not his fault that that did not occur.
So far as the appellant's alternative claim is concerned, that there was allegedly negligence in drafting the orders made at the mediation, Mr Lawson is protected by advocate's immunity even if there was some fault on his part. This is so for the same reasons I give below in relation to RHS's immunity in respect of the appellant's secondary claim. In the absence of the appellant having a cause of action against him, Mr Lawson cannot be characterised as a "concurrent wrongdoer" (Trajkovski v Simpson [2019] NSWCA 52 at [195]).
I have concluded that Dr Liprini also has not been shown to be a "concurrent wrongdoer". Certainly that expression has a wide operation because its definition relevantly refers only to the person being someone who "caused" the plaintiff's loss or damage. It is thus capable of applying to persons who are liable to the plaintiff on different causes of action to those upon which the defendant is liable to it - for example the fraudster in Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10.
The loss for which the appellant sued in the present proceedings is however in my view a different loss to that caused by Dr Liprini not paying the debt which Nicholas J held he assumed as a result of the mediation settlement. The former is the appellant's loss of his valuable right to claim provision under the FPA from his mother's estate. The latter is the appellant's loss resulting from the non-payment of Dr Liprini's debt that it is to be assumed arose out of the mediation orders. That debt was not an obligation of the estate to pay family provision, or to put it more precisely, to treat the appellant as a legatee of $770,000 under a codicil to the mother's will. At best, it would, if paid, have had the effect of replacing that right but it was not the right itself. The connection in this respect was more tenuous than that which in Trajkovski at [193] was held to be insufficient to constitute the third party a concurrent wrongdoer.
For these reasons RHS's proportionate liability defence should be rejected.

(2018) 97 NSWLR 1163

At a glance

Court

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Judgment (9 paragraphs)

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Legislation Cited (8)

Cases Cited (21)

Cited By (4)