Anderson v Edwards - [2009] NSWCA 375

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Anderson v Edwards [2009] NSWCA 375

FILE NUMBER(S):
40184/09

HEARING DATE(S):
18 November 2009

EX TEMPORE DATE:
18 November 2009

PARTIES:
Paul Richard Anderson (First Appellant)
Peter William Turk (Second Appellant)
Pieter Edward Oomens (Third Appellant)
Graham Kenneth White (Fourth Appellant)
John Kenneth Myatt (Fifth Appellant)
Samuel Kennedy (Sixth Appellant)
John Peter Hick (Seventh Appellant)
Roger Daniel Walter (Eighth Appellant)
Joanna Apostolopoulos (Ninth Appellant)
David Eric Collinge (Tenth Appellant)
Mary Karekos (Eleventh Appellant)
Alphonse Luke Edwards (Twelfth Appellant)
Michelle Anne Riordan (Thirteenth Appellant)
Christine Tsekouras (Fourteenth Appellant)
Kerry Haddock (Fifteenth Appellant)
David Harry Edwards (First Respondent)
Judith Anne Gorry (Second Respondent)

JUDGMENT OF:
Tobias JA Macfarlan JA Young JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20099/07

LOWER COURT JUDICIAL OFFICER:
Schmidt AJ

LOWER COURT DATE OF DECISION:
15 May 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Edwards and Anor v Anderson and Ors [2009] NSWSC 373

COUNSEL:
R Darke SC and M Dicker (Appellants)
M R Aldridge SC and J C Thompson (Respondents)

SOLICITORS:
Colin Biggers & Paisley (Appellants)
Lander & Lander (Respondents)

CATCHWORDS:
DAMAGES- solicitors' negligence- plaintiff's possible alternative transactions not relevant.

LEGISLATION CITED:
Civil Liability Act 2002, s 5D
Retirement Villages Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Doundoulakis v Antony Sdrinis & Co [1989] VR 781

TEXTS CITED:

DECISION:
Appeal dismissed with indemnity costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40184/09
TOBIAS JA
MACFARLAN JA
YOUNG JA
Wednesday 18 November 2009

ANDERSON v EDWARDS

Judgment

TOBIAS JA: I ask his Honour Justice Young to give the judgment.
YOUNG JA: This is an appeal from a decision of Schmidt AJ as her Honour then was in a solicitors’ negligence case. The respondents are the executors of the late Harry Joseph Augustus Edwards who died on 3 July 2008 after these proceedings had been commenced. Mrs Nellie Edwards, Mr Edwards’ wife, died earlier on 5 February 2007. The present respondents are the children of Mr and Mrs Edwards, David Harry Edwards and Judith Anne Gorry
The deceased had retained Mr Anderson, a partner in the appellant firm of solicitors, to act for him in connection with his acquisition of a position in a retirement village known as Woolcott Court.
The exact structure of buying into the retirement village is, as is often the case, rather complicated and it is not necessary to go into all the complications in these reasons. Essentially, the village was operated by a company, Woolcott Village Pty Limited, which I will refer to as “Woolcott Village”, and another company of similar name which was managing the village and the property that was to be held by Mr Edwards was a sublease of a unit in the village.
The transaction involved there being a nominal rent, I think $12.00 a year, and some costs for maintaining lifestyle. The transaction involved the payment of an initial sum to Woolcott Village or its associates. The sum should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Edwards

Details

AGLC: Anderson v Edwards [2009] NSWCA 375
Case: [2009] NSWCA 375
Decision Date: 18 November 2009

CaseChat Overview and Summary

Anderson (the plaintiff) brought proceedings against Edwards (the defendant), a solicitor, alleging professional negligence. The dispute concerned the plaintiff's claim for damages arising from the defendant's alleged negligence. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the plaintiff's potential alternative transactions, which were not pursued, were relevant to the assessment of damages in a claim for solicitors' negligence.

The Court of Appeal held that the plaintiff's possible alternative transactions were not relevant to the assessment of damages. The court reasoned that the defendant's negligence had deprived the plaintiff of a specific opportunity, and the damages should be assessed by reference to the value of that lost opportunity, rather than by speculating on what the plaintiff might have done otherwise. The legal principle applied was that damages for professional negligence are intended to put the plaintiff in the position they would have been in had the negligence not occurred, focusing on the loss of the specific opportunity that was negligently handled.

The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs on an indemnity basis.

Orders

Orders of the court

Appeal dismissed with indemnity costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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