6–7 April 2021; last written submissions 5 July 2021
Date of orders:
3 August 2021
Decision date:
03 August 2021
Before:
Payne JA at [1]; White JA at [261]; McCallum JA at [262]
Decision:
(1) Bartier Perry’s motion dated 19 March 2021 seeking to lead fresh evidence is dismissed;
(2) Appeal allowed;
(3) Set aside orders 2 and 5 made by Rothman J on 1 December 2020 (including the undertaking offered as a condition of making order 2) and in lieu thereof order:
(a) Bartier Perry to pay damages to Mr Paltos in the amount of $942,777;
(b) Bartier Perry to pay Mr Paltos’ costs of the proceedings on the ordinary basis;
(4) No order as to costs of the appeal with the intention that the parties pay their own costs of the appeal;
(5) Cross-appeal dismissed;
(6) Cross-appellant to pay the costs of the cross-respondent of the cross-appeal.
Catchwords:
NEGLIGENCE – professional negligence – solicitors – where appellant law firm was retained to advise the respondent as to his rights in a family law partnership – whether appellant failed to give competent advice to the respondent about the manner and circumstances of the exercise of a put option granted by a put and call option agreement forming part of the partnership documents – breach of retainer and concurrent duty of care
NEGLIGENCE – professional negligence – causation – factual causation – where respondent would have exercised put option had he been properly advised of his rights – where failure to give competent advice caused loss
CONSUMER LAW – misleading or deceptive conduct – professional advice – where a dangerously incomplete statement of the respondent’s rights was misleading and deceptive in that it was apt to mislead the respondent into believing that his legal rights were ineffective
CONTRACTS – implied terms – terms implied in law – necessity
CONTRACTS – implied terms – terms implied in fact – necessary to give business efficacy
CONTRACTS – construction – interpretation – calculation of purchase price under formula prescribed in a put and call option agreement
APPEALS – damages – where primary judge awarded damages and required an undertaking as to repayment pending the outcome of related proceedings – whether primary judge erred in not assessing damages on a lump sum basis once and for all – whether this Court should itself determine the damages payable on a lump sum basis – approach for correct assessment of damages
[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 Bartier Perry Pty Ltd v Paltos
Sign in free to access the full text
Details
AGLC
Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158
Case
[2021] NSWCA 158
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between a law firm, Bartier Perry Pty Ltd (the appellant), and its former client, Mr Paltos (the respondent). The respondent alleged that the appellant had provided negligent advice regarding his rights under a family law partnership agreement, specifically concerning a put option. The respondent claimed this inadequate advice led to him suffering financial loss. The matter was heard in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine whether the appellant had breached its retainer and duty of care by failing to provide competent advice on the exercise of the put option. It also had to consider whether the appellant's conduct constituted misleading or deceptive conduct under consumer law, given that the advice provided was allegedly dangerously incomplete and likely to mislead the respondent about the effectiveness of his legal rights. Furthermore, the court needed to assess issues of contractual interpretation concerning the calculation of the purchase price under the option agreement and the appropriate method for assessing damages, particularly whether they should have been awarded on a lump sum basis.
The Court of Appeal found that the appellant had indeed failed to provide competent advice, which caused the respondent to suffer loss. The court determined that the advice given was misleading and deceptive, as it was likely to lead the respondent to believe his rights were ineffective. The court allowed the appeal, setting aside the primary judge's orders and awarding damages to the respondent in the amount of $942,777. The court also ordered that the appellant pay the respondent's costs of the proceedings on the ordinary basis. The cross-appeal was dismissed.
Orders
Orders of the court
(1) Bartier Perry’s motion dated 19 March 2021 seeking to lead fresh evidence is dismissed;
(2) Appeal allowed;
(3) Set aside orders 2 and 5 made by Rothman J on 1 December 2020 (including the undertaking offered as a condition of making order 2) and in lieu thereof order:
(a) Bartier Perry to pay damages to Mr Paltos in the amount of $942,777;
(b) Bartier Perry to pay Mr Paltos’ costs of the proceedings on the ordinary basis;
(4) No order as to costs of the appeal with the intention that the parties pay their own costs of the appeal;
(5) Cross-appeal dismissed;
(6) Cross-appellant to pay the costs of the cross-respondent of the cross-appeal.