Damages Claim On Legal Firm Fails

Press, Volume C, Issue 29520, 23 May 1961, Page 17

Damages Claim On Legal Firm Fails

(New Zealand WELLINGTON. May 22. An action against a firm of solicitors to recover damage* in respect of "certain alleged failures" on the part of the firm to discharge Its duty has been dismissed by tbe Chief Justice. Sir Harold Barrowclough.

The plaintiff was Stanley Keith Rowe, a farmer, of Ohariu Valley. The defendants were Edward Denis Blundell. Richard Spence V Ikmann Simpson, Lyndsay Mason Papps. John Desmond Dalgety, Laurence Murray Greig. ana lan Wilfred Caird, all of Wellington, and under the name of Bell, Gully and Company. In a judgment delivered in • ie Supreme Court today, his Honour said he considered ■ le Court should be “astute • > see that when a solicitor fans tn his duty to his client that client should receive proper compensation for the solicitor's default.” Tie defendants had former y acted as solicitors for the plaintiff and the plaintiff had acknowledged that they had "acted very successfully and competently.” The defendant firm did not have a general retainer from •he plaintiff and were free to refuse to act for him in any particular matter. “Consulted" "It is common ground, however, that even though •he defendants had indicated liieir unwillingness to con- • nue to act for the plaintiff n the absence of some arrangement in regard to past costs, and even though those outstanding costs had not been paid, nevertheless in May. 1957. the plaintiff did consult Mr Caird in connexion with a lease and Mr Caird did give some advice thereon. “It is contended for the piaint ff that n so advising the plaintiff Mr Caird failed

Ptess Anoci atio n) to discharge the duty, which arose out of the relationship between them of solicitor and client, to be skilful and, careful in acting for the plaintiff and advising him in connexion with his rights, obligations and liabilites thereunder." The judgment said the plaintiff had proposed to lease 98 acres of farm land on a five-year lease with a right of renewal.

By virtue of the provisions of_ the Land Settlement Act. 1952. such a lease would be void unless the transaction was consented to by the Land Valuation Court. Mr Caird did not draw the plaintiff’s attention to the need for obtaining tha consent of the court.

The plaintiff executed the lease in the office of another solicitor by whom it had been prepared and took possession of the land.

No application was made for the necessary consent by the Land Valuation Court and, disputes having arisen between the plaintiff and his landlord, the plaintiff was compelled to give up possession of the land because the “so-called lease” was a nullity. He claimed he had suffered substantial financial loss. His Honour said he found the negotiations for the lease had been conducted by the proposed parties without any request for professional assistance from the defendants before May 24. 1957. by which time the main terms of the lease had been agreed Another Solicitor He was satisfied that Mr Caird always believed that Mr Mellish (another solicitor) was acting for the lessee as well as for the lessors and considered that belief was justified.

In my view. Mr Caird was

entitled to assume that Mr Mellish would attend to the matter of getting the necessary consents.

“Mr Mellish was acting for both lessors and lessee. He would owe a duty to both parties to obtain that consent. “In these circumstances and in view of his limited instructions, Mr Caird was under no duty to direct his mind to the question of consent or to any other question that would properly concern a “lessee’s solicitor” except the question whether the provisions of the document were usual and reasonable and without traps. No doubt, being wise after the event. Mr Caird may well reproach himself for not having gone outside the question put to him. . . . “I have given very lengthy consideration to this claim for it seems the plaintiff did not receive adequate professional advice in any early stage in the steps that culminated in his execution of the agreement to lease. “On the evidence I cannot hold that the defendants were in default and the action must therefore be dismissed with the usual consequences as to costs.” the judgment concluded.