Wakim v Coleman & Ors

Background 7 Twenty-three years ago Mr Wakim obtained judgment in the sum of $786,801.45 for damages arising out of an injury he suffered at work. His employer at the time of the injury was the partnership of Mr Tedros Nader and Mrs Nawal Nader. Mr Wakim's solicitors had, however, sued only Mr Nader, who went bankrupt on his own petition less than three months after judgment was entered. 8 Since then, Mr Wakim has taken many steps to recover the value of the unsatisfied judgment. He received $100,000 from the partnership's insurer. He sued his former solicitors for their failure to join Mrs Nader in the action and settled that claim for $150,000. He also sued Mrs Nader and settled that claim for $10,000 on terms requiring her to acquire certain assets of her husband's estate from the trustee in bankruptcy. Mr Wakim has received $256,832 in distributions from the bankrupt estate. 9 Separately, Mr Wakim indemnified the trustee in bankruptcy to bring an equity suit against Mrs Nader for a declaration that the judgment debt was a debt of the partnership. On advice from the late Mr Darvall QC, the trustee consented to the dismissal of those proceedings on the basis that each party bear his or her own costs. 10 Mr Wakim was dissatisfied with the trustee's conduct of the bankruptcy and, in particular, the resolution of the equity suit. He commenced three sets of proceedings in the Federal Court. The first were commenced in July 1993 against the trustee alleging various breaches of duty. In December 1993 Mr Wakim commenced proceedings against Mr Darvall alleging negligence in relation to advice he provided to the trustee which led to the dismissal of the equity suit. In 1994 Mr Wakim commenced proceedings against the solicitors retained by the trustee alleging negligence in similar terms to that alleged against Mr Darvall. 11 Mr Darvall died before the proceedings were heard and HIH was substituted as a defendant in his place. 12 Mr Wakim retained the law firm Taylor and Scott to act in the three Federal Court proceedings. The first to fifth defendants in the present proceedings are the partners of that firm. Taylor and Scott briefed Mr Murr SC and Mr Ogborne to appear at the hearing of the proceedings between 13 and 16 June 2000 before Einfeld J. Mr Murr and Mr Ogborne are the sixth and seventh defendants respectively. 13 Some time after Einfeld J reserved his decision, Mr Wakim terminated Taylor and Scott's retainer and retained new lawyers who applied for leave to file further submissions to Einfeld J. Further submissions were provided by the end of January 2001 and judgment was handed down in all three matters on 20 February 2001. Einfeld J dismissed the claim against the trustee, finding no breach of duty. He dismissed the claim against the solicitors on the same basis. As to the claim against the barrister, the judge held that Mr Darvall had breached his duty of care to Mr Wakim but that the breach did not cause any of the loss alleged. 14 An appeal against the dismissal of the proceedings against the trustee was dismissed by consent with each party paying its own costs. As to the dismissal of the claim in respect of the advice of Mr Darvall, the plaintiff failed to obtain leave to appeal against HIH, which had gone into provisional liquidation after Einfeld J had delivered his judgment. 15 Mr Wakim successfully appealed against the decision dismissing the claim against the solicitors. The parties then settled that claim on the basis that Mr Wakim was to receive $1.4 million. He has received the value of the whole of that sum, having received a balance of $1.1 million after the deduction of his solicitor/client costs. Pursuant to the settlement, the solicitors were also required to pay Mr Wakim's costs but he has not enforced that obligation.