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Woman fails to sue lawyers after settlement remorse
A court has thrown out a woman’s attempts to blame her lawyers for a costs order that was triple the sum of a settlement order.
Naomi Neilson
A former client of NSW solicitor Stephen Friend and barrister Andrew Paterson unsuccessfully alleged they were negligent, misleading and deceptive when giving her advice about two settlement offers made by her former partner in a property adjustment dispute.
The Supreme Court found in favour of the legal practitioners last May, but the client, Judith Odlum, appealed on the grounds Justice Richard Cavanagh failed to find the advice was negligent and caused her to lose an opportunity to purchase the property in dispute.
In tossing out her appeal, Justices Anna Mitchelmore, Mark Leeming and Ian Harrison said Odlum advanced arguments that were “difficult, if not impossible, to reconcile” and often “quoted selectively” from Justice Cavanagh’s reasons to omit some of his criticisms.
The first offer, made after judgment was delivered in late 2011, requested Odlum pay her former partner $30,000.
Odlum was advised about “potential costs risks” associated with accepting the offer and told to make a counteroffer.
Instead, Odlum told Friend she did not want to pay any amount to the former partner and instructed him to reject the offer.
The second offer was made for $23,000, and Odlum was told she would be at risk of an adverse costs order if she did not accept.
A court eventually ordered that she pay 75 per cent of her former partner’s costs, which came to the sum of $98,000.
Last May, Justice Cavanagh found the lawyers’ advice for the first offer “could not have caused a loss” because it enticed a lower offer.
As for the second, Justice Cavanagh said Friend and Paterson had exercised “reasonable care” by advising Odlum about the costs consequences of not accepting the former partner’s offer.
Justices Mitchelmore, Leeming and Harrison found the advice about the first costs offer could not have been negligent because Odlum had been “appropriately advised to make a counteroffer”.
“Even if Odlum were correct that she was not advised about making a counteroffer … there would be no casual connection between any such omission and the loss Odlum advanced in light of the second costs order,” the appeal bench said.
On the second costs order, Justices Mitchelmore, Leeming and Harrison said “appellate restraint” is required to advance the argument she lost an opportunity to purchase because of the lawyers’ alleged negligence, unless it is “glaringly improbable” or “contrary to compelling interferences”.
“Apart from asserting His Honour was wrong and reiterating her account, Odlum has not sought to demonstrate why His Honour’s findings satisfied that description,” they said.
The appeal was dismissed, and Odlum was ordered to pay costs.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
