Cooper v Winter

[2013] NSWCA 261

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Solicitors' duties
4. › Duty of care to clients and former clients
5. › Whether solicitor-client retainer existed
6. › Whether ongoing general retainer or discrete retainers
7. › Whether duty of care arose outside scope of retainer
1. Equity
2. › Fiduciary duties
3. › Solicitor and client
4. › Whether fiduciary duty subsisted after termination of retainer
5. › Whether conflict of interest arose
6. › Confidential information of former client
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Credibility findings
5. › Whether primary judge's preference for one witness's version was erroneous
6. › Whether failure to have regard to objective circumstances
1. Evidence
2. › Expert evidence
3. › Whether trial judge bound to accept unchallenged expert evidence
4. › Expert opinion dependent on factual assumptions not established

Quick Take

A solicitor's dealings with a person over an extended period, including receiving instructions from that person in relation to a company's affairs, do not of themselves establish an ongoing general solicitor-client retainer where the instructions can be explained by the person's role as director or employee of the company. Expert evidence on breach of solicitor's duties that is predicated on the existence of a solicitor-client relationship will be rejected where that relationship is not established on the facts.