Supreme Court of NSW|1998-10-21|Before: Young J

Studer v Boettcher Matter No 4900/92 [1998] NSWSC 524 (21 October 1998)

The Supreme Court of New South Wales Equity Division

HIS HONOUR: This is an action against a solicitor for negligence. It has been heard in the Equity Division as it was originally part of more complex litigation.

The plaintiff is a person, who at all material times before 1984 was a Swiss national. He first visited Australia and then came out to live here permanently. He had been put in contact with one of the "purchasers" of part of this property, a Miss Mirjam Konig. The precise degree of association between the plaintiff and Miss Konig has been the subject of evidence and the parties are not ad idem on it, but I will endeavour as much as possible in these reasons to avoid side tracks and so will not go into that matter.

Miss Konig had built a two-room house and associated works on her part of the land. She had never, it would seem, applied for or received planning permission or building approval to build the house. However, there is no doubt at all that the plaintiff was aware that she had the house there and she was living in it.

The plaintiff in due course purchased the land. Again the documentation dealing with the conveyance is rather sloppy, as is the recording of what happened in Mr Smith's trust ledger. It would seem if one looks at the actual dates on various documents that both the deposit and the whole of the purchase moneys were received and disbursed to the vendor before the contracts were even exchanged. However, the situation was that Mr Studer, the plaintiff, purchased the whole of the land for $82,000, the contract referring to the lease and caveat of Miss Konig, and another "purchaser" Miss Granich, as well as the lease given to a banana farmer. Mr Studer purchased the rights of Miss Granich and arrangements were made to take the land free of the interests of the banana farmer. However, this still left Miss Konig, who was in possession under a lease with a rent of $1 per year, with her interest supported by a caveat.

Again, what happened next need not be looked at too closely because it is only the broad brush effect of it that is relevant. Essentially, Miss Konig said that she was induced to remove her caveat and to allow Mr Studer to become the registered proprietor of the whole of the land by representations which she believed and which she claimed were fraudulent. She claimed in proceedings brought in this Court that the registration of Mr Studer should be set aside because of his fraud, or alternatively that she had constructed improvements and acted to her detriment on the basis of the representation and should be either given an interest in the land to justify her equity, or alternatively be given some compensation.

Mr Studer firmly disputed Miss Konig's right to anything. He was firmly of the view that Miss Konig was occupying an illegal house on an illegal subdivision and had no rights. Indeed, he sought to evict her. The proceedings were very active in this Court in the beginning of 1991 and were likely to last ten or more hearing days.

It would seem that in April 1991 the Law Society of New South Wales was actively seeking suitable cases for a new scheme of mediation and was promoting what it called "settlement week" in order to showcase this new scheme. It or its agent suggested that Konig v Smith and Studer was a suitable case for mediation during settlement week. The plaintiff initially resisted this but eventually agreed.

The mediation took place before a retired judge on 17 May 1991. The mediation, as far as the evidence discloses, took the form of each party by his or her counsel making an opening statement, in some cases this was supported by a written document, and then the parties went into private session so they could discuss the matter between themselves, and the retired judge circulated, making suggestions and trying to resolve the matter.

The evidence shows that the mediation took some eight to ten hours. It ended with the plaintiff agreeing to pay Miss Konig $100,000 and with solicitor Smith agreeing to make a contribution over and above that $100,000. The plaintiff's $100,000 was to be paid by instalments over a period secured by mortgage. It would seem that he was not able to keep up with these instalments, and the property in due course had to be sold.

The plaintiff says that he should never have entered into that agreement to settle with Miss Konig. He did so because undue pressure was put on him by the defendant solicitor, or alternatively that the defendant so negligently, carelessly and unskilfully conducted himself in the said mediation that he failed to make a proper assessment of the respective cases of Mr Studer and Miss Konig, as a result of which the defendant advised the plaintiff to make a settlement that he should never have made.

There seems little doubt that the mediation did last from eight to ten hours. The defendant, who gave evidence that he had been involved in some twenty-five mediations said that that was not at all unusual with mediations. The plaintiff, on the other hand, said that he found the matter to be very pressured. He said that he went into the mediation believing that at the most he should offer some $20-30,000, that he believed that if Miss Konig was entitled to anything it was some sort of licence to remain on the land and he said, to use his counsel's words, that he fought like a tiger all day until all the life went out of him and he capitulated under pressure.

There is no doubt that there were long discussions between the parties, and in private between the defendant and Mr Walmsley of counsel, and Mr Studer. Mr Walmsley was originally sued along with the defendant, but on the morning of the sixth day the proceedings were settled against him and so I need say nothing further about that aspect of the case.

The defendant says that in the private sessions he spoke to Mr Studer in German. The defendant spoke fluent German and German was Mr Studer's primary language. The defendant said that he was careful to explain the various concepts that were being dealt with in plain and untechnical language. He admitted that he may never have used the words "equitable interest". Indeed, that is a hard expression to put into the German language as the German legal system has no equivalent, but he says he would have conveyed that sort of concept as best he could in plain language.

The defendant agrees that for quite a while the plaintiff was not interested in moving beyond some $30-50,000.

However, the defendant says that at some time the retired judge said that it was quite plain that the case was not going to settle unless Mr Studer made an offer of at least $100,000.

The defendant says that he and the barrister then spoke to the plaintiff and gave him advice. There are various passages in the defendant's affidavit which sum up what he said. At p 238 of the transcript in cross-examination he said that he took a number of factors into account when assessing the credibility of Miss Konig, Mr Smith and Mr Studer. He looked at the affidavit evidence. He looked at Miss Konig's behaviour to see whether it was consistent or inconsistent with what she said in her affidavit, and he observed Miss Konig's demeanor on the day of the mediation.

The defendant says at transcript pp 259 to 261 that he was also very concerned to do what can be conveniently summarised by Mr Justice Powell's advice to new barristers and solicitors, that is, "do the sums for the customer". Thus, he put to Mr Studer that Miss Konig was on legal aid and appeared to have no property; that if the matter were to go to court there would be a hearing for at least two weeks, so that even if Mr Studer won the litigation he may well be out of pocket $100,000.

The defendant then put alternatives as to what would happen if Mr Studer lost against Miss Konig and how he would be even worse off than $100,000, and that really Mr Studer could not win, in the sense of having money in his pocket, because of the legal costs and the fact Miss Konig was on legal aid. He said, at p 260:

"A lot of the mediation was spent talking to him about those sorts of issues and making Mr Studer understand that that was the situation."

Mr Studer says that part of the pressure that was put on him was that he was told that the mediator was not available after 4 o'clock and that if he, Studer, did not accept the recommendation of his solicitor, his solicitor and his barrister would withdraw. Mr Studer says that it was also mentioned that Mr Forbes, solicitor, who had taken over Smith's practice, might need to be joined as a party, and if that happened then Mr Walmsley may have to withdraw because of personal association. Accordingly, Mr Studer says there was great pressure on him to settle because otherwise he would be deserted by his legal advisers. He says that he did tell the defendant that he wanted to finish the mediation and withdraw from it.

The defendant solicitor agrees that Mr Studer did say that he wanted to terminate the mediation, but that there was further talk as to the practicality of fighting a two week case against a person who was on legal aid. There was also talk about the possibility of Mr Forbes being joined and that fact further blowing out the issues.

So far as withdrawal of legal representation was concerned, the defendant said he made it clear that he had planned his long service leave, which was for three months in August to November, and that if the mediation did not succeed he would not be available between August and November to conduct the case. He said that this was plainly put at all material times and that it was certainly no threat to withdraw from further representing the plaintiff if the mediation was not successful.

Mr Studer in his evidence repeated over and over again the claim that he only signed through pressure. His affidavit of 31 July 1995 in paras 18 and following put, in mainly inadmissible form, that the negotiations lasted for ten hours; that he depended upon the defendant's translations as to what was going on; he constantly refused to sign; the defendant threatened to withdraw; he felt terribly bewildered and helplessly abandoned and his resistance finally collapsed and he signed. In evidence he was cross-examined by Mr Williams of counsel for the defendant for the best part of two days, and then there was an additional long cross-examination by Mr Hutley SC, who appeared for Mr Walmsley. Again he repeated the same sort of allegations in cross-examination.

For instance at pp 83 of the transcript and following there is a fair detail of Mr Studer's version. He says that he came up from Victoria, where he was living, the day before the mediation and stayed overnight. The evidence was that Mrs Studer knew that the mediation was on.

"My wife knew more but she didn't want to come along."

However, later in the evidence Mr Studer tried to give the impression that Mrs Studer thought there was only some matter of getting together and seeing how the case could proceed, rather than any final determination.

He said at p 94 of the transcript that what he said on p 79 must have been a mistake because it was not true, "it was so important for us". He says that during the day offers went back and forth about a sum of money that he should pay Miss Konig and later it was put to him that the retired judge had said, "unless an offer of $100,000 was put there would be no settlement".

"A. That's not true because Mr Boettcher told me when I want to get out of the whole thing, said that if I didn't agree that they would withdraw, so this was constant pressure on me. "

"Q. You knew that by mid afternoon unless an offer of $100,000-odd was put to the plaintiff [Ms Konig] then the mediation was going to be unsuccessful?

A. That's not true because at that time in the afternoon I rang my wife for the first time.

A. As far as I remember twice. The second time it was very hard for me to be even allowed to phone her.

Q. You spoke to your wife three times that day, didn't you?

A. That's possible. In that case if it was the third time it was the last time I spoke to my wife that Mr Boettcher told me basically that if no solution was found he would no longer be able to act for us."

Mr Studer then denied that the offer of $100,000 was put with his approval, but that he said, "it must be, if it has to be." He said:

"Mr Boettcher said to me to think of my family and that I may lose everything and the sum of $100,000 was not a sum that everybody had.

Q. And following that discussion you agreed, albeit reluctantly, to pay $100,000, didn't you?

A. Mr Boettcher continued to threaten that he would withdraw.

Q. Mr Studer, you agreed to offer $100,000 to settle the case, didn't you?

Q. Leaving aside the reasons for your agreement, the fact is you agreed to offer $100,000 to settle the case, didn't you?

A. I didn't want to settle the case on that basis, as I said before, but I was forced to do so.

Q. The offer was made with your knowledge, wasn't it?

A. Yes, but it was pushed through. The knife was put to my throat."

Later at p 98 he agreed that he knew now that the matter was settled:

"But at the time, as I said yesterday, I was in a kind of fog. I was like a zombie just doing what I was told.

Q. You were actively participating in the way in which the settlement was to be structured, weren't you?

Q. You were told that Miss Konig was prepared to have a delayed sale of the land and a delay in payment to her so long as she got a mortgage over the property, weren't you?

A. That is possible, but at the time, after such a long time I was no longer capable of understanding that."

I think that that passage is the flavour of the evidence of Mr Studer generally.

The case took six days to hear. Mr Pluznyk of counsel appeared for the plaintiff and I have already mentioned counsel for the defendant solicitor and the barrister.

I admire the job that Mr Pluznyk did for the plaintiff. He was obviously under a lot of pressure by being the current legal representative of a succession of barristers and solicitors about whom complaints had been made of negligence and incompetence, and the pressure on him that he might be next in line was obvious. Unfortunately any defect in the presentation of the plaintiff's case was probably caused by that pressure, in that some of the questions asked were questions which Mr Pluznyk tried too hard to make unobjectionable and so fell into the reverse trap of them being too general.

That aside, Mr Pluznyk put everything that could be put on behalf of the plaintiff and thoroughly cross-examined Mr Boettcher, the defendant, for a whole day.

The case was put on two main levels of attack, as can be seen from Mr Pluznyk's closing address. The first was that the defendant put improper pressure on Mr Studer; that the mediation took eight to ten hours; Mr Studer didn't speak English; he didn't have his wife with him; it was Mrs Studer who up to that time had been the person who was making a lot of the running in the case, and that it must have been clear to everybody that Mr Studer, who had fought like a tiger all day finally capitulated when all the life went out of him; had not the defendant forced this situation Mr Studer would not have settled with Miss Konig and so have lost his chance of succeeding in the litigation.

The second attack was that the defendant failed to assess the strength of Mr Studer's case and the weaknesses of Miss Konig's case. It was put in particular, and this came clearly through in cross-examination, that the defendant failed to appreciate the peculiar nature of Mr Smith's bookkeeping and the inconsistent statements made by Miss Konig.

In cross-examination the defendant denied that he had failed to appreciate these matters. He said he had noticed them and he had taken them into account. He said in addition that a solicitor who keeps sloppy records, or was a bad conveyancer or an unsound lawyer, was still, in his experience, likely to be honest and likely to be accepted by a tribunal of fact. He also says that there were many other factors that needed to be taken into account, in particular the fact that Mrs Studer knew about Miss Konig's occupation of the land right from day one, that Mr Studer had bought out Miss Granich, and that there were aspects of the case, in the light of the authorities, which made Mr Studer's case difficult.

He also said, as I have set out before, that in "doing the sums for the customer" the client had to be advised that the whole litigation might end up in a disaster and that even if Mr Studer won he would be out of pocket $100,000. Accordingly, there were a lot of practical reasons to recommend a settlement at this stage, rather than to go through with the litigation, despite any assessment of how a tribunal of fact was likely to evaluate the witnesses.

Mr Studer was cross-examined extensively, as I have said. He gave his evidence through an interpreter. It was fairly clear that he could understand some of the questions he was asked, as they were answered in English before they were interpreted. This is not an uncommon phenomenon and is something that the court always pays attention to, as I did, though it did not have any significance in the present case.

A very common answer to questions in the first five hours was simply, "You will have to ask my wife", or "Why are you asking me these questions? They have nothing to do with the case". After I told Mr Studer that such repeated answers may lead me to think he was hiding something those sorts of answers got less frequent. A matter, again, I thought had some significance.

However, he continued to give answers in a formula, such as "I was like a zombie", "I would sign anything to get out of the building", "I agreed because I had a knife at my throat", and "I was forced to agree". I was not impressed that whenever probing questions were asked I got these ritualistic responses.

There were also some inconsistencies in Mr Studer's evidence. Quite a few of them. For instance, in the earlier affidavit, which is MI716, he made statements completely contrary to what he said in the witness box in front of me.

I was not at all impressed with Mr Studer as a witness. He gave every impression of a man that had a fixed idea in his mind and he was not going to let it go, no matter what. I formed the impression that it was more likely than not that he was now thoroughly convinced that the act of agreeing to the settlement was not an act of his free will and his whole evidence was clouded by the fact that he had now taken that as his primary paradigm.

The only other corroborative witness was Mrs Studer. She gave evidence on the fourth day of the hearing. She, of course, was not present at the mediation and so was not able to be of much assistance on the vital matters of fact.

Her evidence became less and less credible as Mr Williams took her through contemporaneous documents which were inconsistent with her evidence. She often endeavoured to escape by casuistry, but, with his usual tenacity, Mr Williams prevented escape.

The only other witness to give oral evidence was the defendant. He presented well, but I must remember that as a solicitor and used to public speaking he would not have the same nervousness as perhaps the Studers did. Yet despite a day of cross-examination he was untroubled. He gave every indicia of an experienced, knowledgable and capable solicitor and was able to give a very credible account of what happened during the mediation.

Mr Boettcher's evidence was corroborated by Mr Walmsley, but as Mr Walmsley dropped out of the litigation he was not cross-examined, and I will merely note that fact.

I have no trouble at all in saying that where there was any dispute as between the version of facts given by the Studers, on the one hand, and Mr Boettcher, on the other hand, I prefer Mr Boettcher's evidence.

Accordingly, I do not accept that the settlement with Miss Konig was brought about by any undue pressure on behalf of Mr Boettcher, nor that he must have realised that Mr Studer was like a zombie, a man who had lost all his will and was just doing whatever his lawyers said to him.

It would seem from the evidence that Mr Studer did understand the perilous position he was in, and although he did have a great reluctance to settle, eventually he understood that his decision had to be made in the way it was made, whether he liked it or not.

However, it is also quite clear that when he told his wife about the settlement agreement she was not at all pleased and that may be one of the reasons why he later accepted that his will must have been overborne.

As Mr Williams puts in his written submissions, the preponderance of the evidence is that Mr Studer came to a rational decision at the end of the day, albeit one that he did not particularly like. Like many litigants who believe fervently in their own position, it is a matter of disappointment when they realise their best interest is served in solving the matter, even if they were not particularly enamoured by the terms.

Because I have come to the view that I have on the facts, it is unnecessary to go into the question as to how far a solicitor even has a duty to press on reluctant clients the advantages of a settlement which the solicitor knows is going to be emotionally very hard for the client to accept. Certainly thirty or forty years ago, in an era when legal advisers were expected to take a paternalistic role, it is clear that it was the duty of counsel and solicitors to put pressure on clients to do what the lawyers believed was sensible and in the clients' interest; see eg Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235.

Whilst things may be a little different in this less paternalistic age, I believe it still is the rule that it is proper and appropriate for solicitors to put pressure on clients to do what is, in the lawyer's view, in the clients' own interest. Of course, there must come a point where the client is just behaving as an automation and if the matter gets to that point then the solicitor should know that he or she should not proceed at least without an independent person speaking to the client to make sure that the client understands. However, on the facts that is not this case.

So far as considering the merits of the respective cases, courts are particularly reluctant to review the assessment made by barristers and solicitors in advising settlement because so many subjective matters come into the assessment. Counsel and solicitors need to make their assessment of the likelihood of the credibility of their own client being accepted by the judge and jury or, in a bench trial, their experience of the particular judge. As well they use their knowledge of the way insurance companies act, their own assessment of the evidence and consider the result of the exercise of "doing the sums for the customer". The courts do not interfere unless it can be seen that the view that the barrister or solicitor took was such that no reasonable solicitor or barrister could have come to in the circumstances; see Karpenko v Paroian (1980) 117 DLR (3d) 383; Maillet v Haliburton (1983) 55 NSR (2d) 311, 315 and Atwell v Michael Perry & Co [1998] 4 All ER 65.

I could not be satisfied, even if I had accepted the evidence of the plaintiff, that the assessment made by Mr Boettcher failed this test. It is clear that there were some problems in the Konig case. There are problems with most cases, but factors over and above those, which Mr Pluznyk so strongly put to Mr Boettcher in the witness box, needed to be considered as well.

Accordingly, as there is no case on liability I do not have to consider the awkward question of damages. I will just make a couple of comments in case the matter should go further, which I hope it will not.

The first is that, strictly speaking, this is not the loss of a chance type of case. It is not a case where a plaintiff has a chance of getting something and is thwarted by someone's negligence.

The second is that any loss that occurred as a result of the property having been sold is too remote from any negligence because its primary cause would be the impecuniosity of the parties rather than any negligence. Indeed, if the matter had to go to an assessment it would have been extremely difficult on the evidence before me to find very much by way of damages at all.

Accordingly, there should be a verdict for the defendant. The plaintiff should pay the defendant's costs of the proceedings. The exhibits may be returned after twenty-eight days.

Local Government Act 1919

Studer v Boettcher Matter No 4900/92 [1998] NSWSC 524

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Judgment (80 paragraphs)

Studer v Boettcher Matter No 4900/92 [1998] NSWSC 524 (21 October 1998)

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Legislation Cited (2)

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