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Boyded Industries Pty Ltd v Bluth

Boyded Industries Pty Ltd v Bluth

Case [2023] NSWSC 915 4 August 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915
Hearing dates: 17 and 18 July 2023, further submissions 24 and 28 July 2023
Date of orders: 4 August 2023
Decision date: 04 August 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Direct that the parties confer with a view to agreeing upon proposed orders finalising the proceedings in accordance with these reasons (including interest and costs), with agreed orders to be filed and served by 9 August 2023, 5pm.
(2)   To the extent that agreement cannot be reached, direct that each party is to file and serve, by 9 August 2023, 5 pm, the proposed orders it seeks with submissions explaining the basis for why those orders are sought limited to no more than 2 pages.
(3)   Direct that any evidence in support of any contested orders be filed and served by 9 August 2023, 5pm.
(4)   The matter will be listed for further argument, and the entry of further orders, on a date to be fixed.

Catchwords:
NEGLIGENCE – professional negligence – where solicitor failed to advise client of consequences of lodging a caveat – where solicitor accepts breach – whether the plaintiff lost anything of ‘value’ by solicitor’s negligence
NEGLIGENCE – damages – assessment of counterfactual position of client if caveat was not lodged – whether client would have renewed contract with property developer but for solicitor’s negligence – assessment and quantification of damages – loss of opportunity

Legislation Cited:
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

Cases Cited:
Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No.2) [2016] NSWSC 1123
B.& G. Properties Pty Limited v Fayad [2021] NSWSC 1382
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Boyded Industries Pty Ltd v Gateway Parramatta Two Pty Ltd [2020] NSWSC 1368
Cam and Bear Pty Ltd v McGoldrick [2018] NSWCA 110
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Fayad v B & G Properties Pty Ltd [2022] NSWCA 129
Fink v Fink (1946) 74 CLR 127; [1946] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gauci v Commissioner of Taxation (Cth) (1975) 135 CLR 81; [1975] HCA 54
Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15
John v Rees [1970] Ch 345
Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9
Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638,…

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 Boyded Industries Pty Ltd v Bluth

Details

AGLC: Boyded Industries Pty Ltd v Bluth [2023] NSWSC 915
Case: [2023] NSWSC 915
Decision Date: 04 August 2023

CaseChat Overview and Summary

In the case of Boyded Industries Pty Ltd v Bluth, the dispute involved an allegation of professional negligence against a solicitor. The plaintiff, Boyded Industries, alleged that the defendant solicitor failed to advise them of the consequences of lodging a caveat, resulting in a loss. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether Boyded Industries had suffered a loss of value due to the solicitor's negligence in not advising them of the consequences of lodging a caveat. This involved determining whether the plaintiff would have renewed their contract with a property developer if not for the solicitor’s negligence, and subsequently, quantifying any loss of opportunity.

The court found that the solicitor had indeed breached their duty of care by not advising Boyded Industries of the consequences of lodging a caveat. The key legal issue was whether the failure to provide such advice constituted a loss of value to Boyded Industries. The court considered the counterfactual position, that is, what would have happened if the caveat had not been lodged. It was established that Boyded Industries likely would have renewed their contract with the property developer had it not been for the solicitor's negligence. The court then assessed the loss of opportunity to determine the extent of damages that Boyded Industries was entitled to claim.

The court concluded that the failure to advise on the consequences of lodging a caveat did indeed result in a loss of value to Boyded Industries. The court found that the loss of the opportunity to renew the contract with the property developer was quantifiable and awarded damages to the plaintiff accordingly. The court emphasised that the damages were to be calculated based on the lost opportunity to enter into a renewed contract, which would have been available had the solicitor provided proper advice.

Orders