The Plaintiff, Vortec Electric (“Vortec”) commenced an Action for professional negligence against its former lawyers (the “Defendants”) for failing to properly protect its interests in litigation arising from an alleged breach of contract (the “Underlying Claim”). GTK Electric Controls Ltd (“GTK”) had sued Vortec for breach of contract in the Underlying Claim and Vortec retained the Defendants to act as defence counsel. GTK was subsequently granted Summary Judgment against Vortec (the “Underlying Decision”).

Vortec claimed the Defendants had failed to advance an available set-off claim or Counterclaim at the outset of the Underlying Claim under Rule 3.59, which, through the operation of the doctrines of res judicata or issue estoppel, precluded Vortec’s subsequent claim against GTK. Additionally, Vortec submitted that the Defendants had failed to appeal the Summary Judgment Decision in the Underlying Claim in accordance with Rule 6.14.

Renke J. found that there was substantial evidence to suggest that, in the circumstances, set-off would have been appropriate and available under Rule 3.59. His Lordship further determined that there was no evidence to suggest the Defendants had even contemplated an Appeal under Rule 6.14, let alone advised their client of its capacity to do so. Renke J. concluded that the Defendants had failed to meet the standard of care owed to Vortec, caused Vortec to lose its set-off Claim, and that Vortec suffered a loss of $126,494.92 as a result. Vortec was granted Judgment against the Defendants and was awarded Costs.

Justice Renke also addressed the issue of the Defendants’ reliance on unfiled Affidavits, and noted that Affidavits not filed at the time of an Application can be relied upon pursuant to Rule 6.11(2) so long as they are filed as soon as practicable after the hearing.