Authors: Mark Brookes, Partner & Greg Stirling, Senior Associate
Introduction
A recent decision of the New South Wales District Court in the matter of Bird v Stonham t/as John Stonham & Co Lawyers [2019] NSWDC 419. has provided a useful reminder of a number of principles applicable to the consideration of negligence claims against solicitors arising from failed litigation.
Background
Expulsion and bankruptcy proceedings
The plaintiff was the mother of a boy who was expelled from school in 2007. She commenced a suit in the Supreme Court of New South Wales to overturn the expulsion, and lost (expulsion proceedings).
When the plaintiff’s solicitor (Mr Ford) issued a bill in the amount of $100,000 she decided only to pay around $36,000 of it. Mr Ford proceeded to have his costs assessed and recovered a judgment certificate against the plaintiff for the sum of $58,940.22.
On 7 June 2010, Mr Ford issued the plaintiff a bankruptcy notice. The plaintiff engaged a new solicitor (the defendant to these proceedings) to act in relation to the notice. On 25 June 2010 an application to set aside a bankruptcy notice and a supporting affidavit from the plaintiff were filed. The supporting affidavit attached a draft statement of claim for filing in the Supreme Court of New South Wales against Mr Ford in relation to his alleged negligent handling of the expulsion proceedings.
