DELIVERED ON: 24 August 2011 DELIVERED AT: Hobart HEARING DATE: 28 February, 1 March 2011 JUDGMENT OF: Crawford CJ, Blow and Porter JJ CATCHWORDS:
Damages – Measure and remoteness of damages in actions for tort – Remoteness and causation – Proof of causation – Loss of opportunity – Opportunity to surrender lease and demand a payment – Whether a need for proof on the balance of probabilities that the plaintiff would have taken up the opportunity – Assessment of the value of the lost opportunity – Estimation of the value if the opportunity had been pursued to a successful outcome – Proof of a loss in accordance with the principles in Hungerfords v Walker (1989) 171 CLR 125.
Professions and Trades – Lawyers – Duties and liabilities – Solicitor and client – Negligence – In relation to property transactions – Advice as to status of lease – Incomplete advice – Inexperienced client.
Counsel: Appellants: K B Procter SC Respondent: S P Estcourt QC, S Tatarka Solicitors: Appellant: Murdoch Clarke Respondent: Page Seager
Judgment Number: [2011] TASFC 4 Number of paragraphs: 126
Serial No 4/2011 File No 733/2010
BRUCE RICHARD DOOLAN, TIMOTHY JAMES ELLIS, PHILLIP ANDREW WELCH and DAVID ANTHONY SMITH v RENKON PTY…
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.
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AGLC
Doolan v Renkon Pty Ltd [2011] TASFC 4
Case
[2011] TASFC 4
Decision Date
CaseChat Overview and Summary
The plaintiff, Doolan, brought proceedings against the defendant, Renkon Pty Ltd, a firm of solicitors, alleging professional negligence. The dispute concerned advice provided by Renkon to Doolan in relation to a commercial lease. Doolan claimed that the incomplete advice led to a loss of an opportunity to surrender the lease and demand a payment. The matter was heard by the Supreme Court of Tasmania, Court of Appeal.
The central legal issues before the Court of Appeal were whether Doolan had proven, on the balance of probabilities, that he would have taken up the opportunity to surrender the lease and demand payment had he received complete advice. The Court also had to determine how to assess the value of this lost opportunity, specifically how to estimate its value if it had been pursued to a successful outcome, in accordance with the principles established in *Hungerfords v Walker*.
The Court of Appeal considered the principles of causation and the assessment of damages for loss of opportunity. It applied the test that for a loss of opportunity to be recoverable, the plaintiff must prove on the balance of probabilities that they would have taken the opportunity. If that threshold is met, the value of the lost opportunity is then assessed by estimating the probability of a successful outcome had the opportunity been pursued. The Court found that Doolan had not discharged the onus of proving on the balance of probabilities that he would have surrendered the lease and demanded payment. However, the Court allowed the cross-appeal, indicating that the original assessment of damages was flawed.
Consequently, the appeal brought by Doolan was dismissed. The cross-appeal by Renkon Pty Ltd was allowed, and the Court indicated it would hear further submissions from counsel regarding the precise amount of the substituted judgment sum.
Orders
Orders of the court
2. Appeal dismissed.
2. Cross-appeal allowed.
3. The Court will hear further from counsel concerning the amount of the judgment sum to be substituted.