Gadens Lawyers Sydney Pty Limited v Symond

In *Gadens Lawyers Sydney Pty Limited v Symond*, the Court of Appeal of New South Wales considered an appeal by Gadens Lawyers Sydney Pty Limited (the appellant) against a judgment awarded to the respondent, Mr Symond, for damages arising from negligent advice. The dispute concerned the correct method for calculating the respondent's loss, specifically the tax consequences of a restructure implemented following the negligent advice, compared to the tax consequences of a hypothetical restructure that would have been pursued in the absence of that advice.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in the measurement of the respondent's loss. This involved determining the correct comparison between the respondent's financial position under the implemented restructure and the "but for" scenario, and assessing whether certain benefits derived from the restructure, such as the later payment of dividends and the valuation of franking credits, were permanent or temporary. The court also considered whether the appellant was bound by the conduct of the case at trial, particularly in relation to a new point of appeal not raised below.

The Court of Appeal reasoned that the primary judge had made errors in calculating the loss. It found that the benefit derived from the later payment of dividends under the implemented restructure was a temporary benefit and should not have been treated as a permanent gain. Furthermore, the court determined that the primary judge had erred in valuing the deduction of franking credits from the franking account. Consequently, the Court of Appeal allowed the appeal in part, setting aside the original judgment and substituting it with a reduced amount. The court also dismissed the respondent's cross-appeal and made orders regarding costs and the repayment of a portion of the judgment sum, along with interest.