Bluth v Boyded Industries Pty Ltd

Case [2024] NSWCA 67

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67
Hearing dates: 12 February 2024
Date of orders: 04 April 2024
Decision date: 04 April 2024
Before: Bell CJ at [1];
Gleeson JA at [4];
Harrison JA at [5]
Decision:

(1)   Allow the appeal.

(2)   Set aside orders 1 and 2 made on 11 August 2023 and, in lieu thereof, dismiss the Amended Statement of Claim with costs.

(3)   Dismiss the cross-appeal.

(4)   Order the respondent/cross-appellant to pay the appellant/cross-respondent’s costs of the appeal and of the cross-appeal.

Catchwords:

APPEALS – from finding of fact – credibility of witness – where credibility informed assessment of competing contemporaneous documentary, affidavit, and oral evidence at trial – where credibility fell to be assessed having regard to evidentiary inconsistences in an individual’s affidavit and oral evidence at trial in determining what he would have done in two counterfactual circumstances – where primary judge enjoyed the benefit of observing the trial in forming an assessment of credibility

NEGLIGENCE – where law firm breached duty of care to advise client against lodgement of a caveat – damages – loss of chance to exercise right of recission under a call option deed – whether the lost opportunity had some non-negligible value within the principles in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 – where relevant parties had a willingness to pay – where there was insufficient evidence for an inference that the relevant parties had an ability to pay

Legislation Cited:

Land Tax Management Act 1956 (NSW), s 47(1)

Cases Cited:

Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Miles v Luneburger Franchising Pty Ltd [2021] NSWCA 248

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4

Category:Principal judgment
Parties: Dennis Bluth & the 274 others named in Schedule 1 trading as HWL Ebsworth Lawyers (Appellants)
Boyded Industries Pty Limited (Respondent)
Representation:

Counsel:
T M Faulkner SC with G Marsden (Appellants)
J Giles SC with E Ball (Respondent)

Solicitors:
Gilchrist Connell (Appellants/Cross-respondents)
Norton Rose Fulbright (Respondent/Cross-appellant)
File Number(s): 2023/277802
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:

[2023] NSWSC 915

Date of Decision:
04 August 2023
Before:
Chen J
File Number(s):
2021/180823

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants are a firm of solicitors trading as HWL Ebsworth Lawyers (HWLE). The respondent, Boyded Industries Pty Ltd (Boyded), is a family-owned business that operated several car dealerships across New South Wales. Kieran Turner (Mr Turner) is the CEO of Boyded. In 2015-2016, Boyded entered into a series of contracts to sell three blocks of land to various entities known as the Gateway Group, which belonged to…

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AGLC
Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67
Case
[2024] NSWCA 67
Decision Date

CaseChat Overview and Summary

The appeal in *Bluth v Boyded Industries Pty Ltd* concerned a dispute where the appellant, a law firm, appealed a finding of negligence against it. The primary judge had found that the law firm breached its duty of care to its client by advising the lodgement of a caveat, which allegedly caused the client to lose the chance to exercise a right of rescission under a call option deed. The appeal focused on the assessment of credibility of a key witness, which informed the primary judge's determination of what the client would have done in two counterfactual circumstances.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the law firm breached its duty of care and, consequently, whether the client suffered actionable damage. Specifically, the court had to consider whether the lost opportunity to exercise the right of rescission had a non-negligible value, applying the principles established in *Sellars v Adelaide Petroleum NL*. This involved assessing whether the relevant parties had both the willingness and the ability to pay for the exercise of the option.

The Court of Appeal allowed the appeal, finding that the primary judge's assessment of credibility, which underpinned the finding of negligence, was flawed. The court noted that the evidentiary inconsistencies in the witness's affidavit and oral evidence at trial were significant. Crucially, the court determined that while there was evidence of a willingness to pay, there was insufficient evidence to establish an ability to pay on the part of the relevant parties. This lack of proven ability to pay meant that the lost opportunity did not have a quantifiable, non-negligible value.

Accordingly, the Court of Appeal set aside the orders of the primary judge and dismissed the amended statement of claim with costs. The cross-appeal was also dismissed, and the respondent was ordered to pay the appellant's costs of both the appeal and the cross-appeal.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside orders 1 and 2 made on 11 August 2023 and, in lieu thereof, dismiss the Amended Statement of Claim with costs.

(3) Dismiss the cross-appeal.

(4) Order the respondent/cross-appellant to pay the appellant/cross-respondent’s costs of the appeal and of the cross-appeal.

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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