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Edwards v Anderson

Edwards v Anderson

Case [2009] NSWSC 373 15 May 2009

Negligence

Duty of Care

Causation

Admissibility of Evidence

Expert Evidence

Tort Law

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CITATION: Edwards and Anor v Anderson and Ors [2009] NSWSC 373

HEARING DATE(S): 15 April 2009, 16 April 2009

JUDGMENT DATE :
15 May 2009

JUDGMENT OF: Schmidt AJ

DECISION: Proposed Orders:
1. Verdict to the Plaintiffs, with a damages order.
2. Plaintiffs are to bear defendants' costs of the two adjournment applications, and the defendants otherwise to bear the plaintiff's costs of the proceedings, as agreed or assessed.

CATCHWORDS: PROFESSIONS AND TRADES - lawyers - duties and liabilities - negligence in advising clients - sublease of a unit in retirement village - duty to advise - duty of care owed - foreseeability and causation - damages - TORTS - negligence - general matters - solicitor negligence - damages - EVIDENCE - admissibility and relevancy - opinion evidence - qualification of witness

LEGISLATION CITED: Civil Liability Act 2002
Retirement Villages Act 1999
Retirement Villages Regulations 2000
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Australian Securities and Investment Commission v Vines [2003] NSWSC 1095
Capebay Holdings Pty Ltd v Sands [2002] WASC 287
Capital Brake Service Pty Limited v Meagher & 8 Ors t/as Sparke Helmore [2003] NSWCA 225
Dean-Willcocks v Commonwealth Bank of Australia (2003) 45 ACSR 567
Director General Department of Fair Trading v Woolcott Village Pty Ltd [2001] NSWSC 889
Fox v Everingham and Another (1983) 50 ALR 337
Henville and Another v Walker and Another (2001) 206 CLR 459
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Macindoe and Another v Parbery (1994) Aust Torts Reports 81-290
Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (A firm) [1979] Ch 384
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Pegrum and Pegrum v Fatharly [1996] 14 WAR 92
Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735
Sykes v Midland Bank Executor and Trustee Co Ltd [1971] 1 QB 113

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

COUNSEL: Plaintiffs - Mr JC Thompson, counsel
Defendants - Mr D Fagan SC with Mr MCL Dicker, counsel

SOLICITORS: Plaintiffs - Lander & Lander
Defendants - Colin Biggers & Paisley

- 38 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 15 May 2009

20099/07 DAVID HARRY EDWARDS & ANOR v PAUL RICHARD ANDERSON & ORS

JUDGMENT

1 HER HONOUR: These proceedings were commenced by Harry Joseph Augustus Edwards in April 2007. They were pursued by further amended statement of claim filed in Court on 15 April 2009…

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 Edwards v Anderson

Details

AGLC: Edwards v Anderson [2009] NSWSC 373
Case: [2009] NSWSC 373
Decision Date: 15 May 2009

CaseChat Overview and Summary

In the case of Edwards v Anderson, the plaintiff sought to recover damages for losses she suffered due to advice given by the defendant, a solicitor, in relation to a sublease of a unit in a retirement village. The primary issue was whether the solicitor owed a duty of care to the plaintiff and, if so, whether that duty was breached, leading to the plaintiff's loss. The plaintiff alleged that the solicitor's advice resulted in her entering into a sublease agreement that was detrimental to her financial interests. The High Court was tasked with determining the scope of the duty of care owed by the solicitor to the plaintiff and whether the solicitor's advice was negligent.

The court considered whether the solicitor owed a duty of care to the plaintiff and if the advice given was negligent. It was established that a solicitor does owe a duty of care to their client in providing professional advice. The court further examined whether the advice given by the solicitor was negligent, focusing on the foreseeability of the loss and whether the loss was caused by the solicitor's advice. The court found that the solicitor did owe a duty of care to the plaintiff and that the advice given was negligent as it failed to consider the plaintiff's best interests. The court held that the plaintiff's loss was foreseeable and directly caused by the solicitor's negligent advice.

The court concluded that the solicitor breached the duty of care owed to the plaintiff, leading to the plaintiff suffering a loss. The court awarded damages to the plaintiff for the losses suffered due to the solicitor's negligence. The court also considered the admissibility and relevancy of opinion evidence in determining the extent of the damages. The court found that the opinion evidence provided by the expert witness was relevant and admissible, and it used this evidence to determine the appropriate amount of damages to award. The final orders of the court included an award of damages to the plaintiff for the losses suffered due to the solicitor's negligent advice.

Orders