Hall and Ors (T/A Bonnins) v Karen Foong No. SCGRG 95/93 Judgment No. 5381 Number of Pages 29 Negligence Professional Negligence (1995) 65 Sasr 281 - [1995] SASC 5381

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), OLSSON(2) AND DEBELLE(3) JJ

CWDS
Negligence - professional negligence - Causation - solicitor - advice to plaintiff who as purchaser seeks to avoid contract to purchase land - advice that contract can be avoided - advice contrary to decided authority - solicitor negligent - loss of opportunity to settle claims arising out of contract - whether negligence caused loss of opportunity - appeal allowed. Real Property Acts223 lb, referred to. Castanelli v Hay (1990) 156 LSJS 95; Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (1979) Ch 384; Aluminium Products (Qld) Pty Ltd v Hill (1981) Qd R 33; Sykes v Midland Bank Executor and Trustee Co Ltd (1971) 1 QB 113; Lillicrap v Nalder and Son (1993) 1 All ER
724; Hanflex Pty Ltd v H S Hope and Associates (1990) 2 Qd R 218; Sellars v Adelaide Petroleum NJ (1994) 179 CLR 332; Duchess of Argyll v Beuselink (1972) 2 Lloyds LR 172; Faithfull v Kesteven (1910) 103 LT 56; Fletcher v Jubb (1920) 1 KB 275, applied.

HRNG ADELAIDE, 7 August 1995 #DATE 14:12:1995 #ADD 15:1:1996

Counsel for appellants: Mr N W Morcombe QC with
Mr B Beazley

Solicitors for appellants: Daenke O'Donovan

Counsel for respondent: Mr R Evans

Solicitors for respondent: Carabelas and Co

ORDER
Appeal allowed.

JUDGE1 DOYLE CJ For the reasons to be delivered by Debelle J, in my opinion the appeal should be allowed. I agree with the orders which he proposes.

JUDGE2 OLSSON J This is an appeal against a judgment entered by Lee DCJ in an action in the District Court. In those proceedings the respondent had claimed damages from the appellants for their alleged negligence and breach of contract in relation to certain legal work done by them as her solicitors. The learned trial judge upheld that claim and entered judgment in favour of the respondent against the appellants in the sum of $62,820 (inclusive of interest), plus costs to be taxed.

2. The appellants initially sought to appeal against that judgment, both as to liability and quantum. However, on the hearing of the appeal, the appeal as to quantum was abandoned, and need not further be considered.

3. The trial extended over many hearing days, the transcript of evidence totalling some 948 pages. A substantial quantity of documentary evidence was also tendered.

4. Before attempting to address the fundamental issues arising on the appeal it is first necessary to attempt to tease out the key narrative facts, bearing in mind the findings expressed or implied in the written reasons published by Lee DCJ.

5. At all material times the appellants, in partnership, conducted a legal practice under the firm name "Bonnins". The appellant Nield was a senior partner in that firm and was the practitioner who had the conduct of the relevant matter. At the time he held himself out as a legal practitioner who had particular expertise in the conveyancing field.…

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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Details

AGLC: Hall and Ors (T/A Bonnins) v Karen Foong No. SCGRG 95/93 Judgment No. 5381 Number of Pages 29 Negligence Professional Negligence (1995) 65 Sasr 281 [1995] SASC 5381
Case: [1995] SASC 5381
Decision Date: 14 December 1995

CaseChat Overview and Summary

The case involved an appeal by a firm of solicitors against a judgment awarding damages for professional negligence. The solicitors had advised a client, Ms Foong, on a contract for the purchase of land. Ms Foong, who had limited English language skills, sought advice from the solicitors on whether she could avoid the contract. The solicitors gave advice that the contract could be avoided based on a section of the Real Property Act, contrary to decided authority. This advice led to a missed opportunity for Ms Foong to settle the dispute on favourable terms. The trial judge found the solicitors negligent and awarded damages for the lost opportunity to settle.

The Full Court of the Supreme Court of South Australia allowed the appeal. The Court found that while the solicitors were indeed negligent in their advice, it was not established that this negligence caused the loss of the opportunity to settle. The Court emphasized that for Ms Foong to succeed in her claim, she had to prove that she would have acted differently if properly advised. However, there was insufficient evidence to infer what Ms Foong would have done if she had received the correct advice. The Court concluded that it was not possible to determine on the balance of probabilities how Ms Foong would have acted had she been informed of the full effect of the contrary opinion from counsel. Therefore, the solicitors' negligence did not result in any provable loss to Ms Foong.

The appeal was allowed, and the judgment of the trial judge was set aside. In lieu of the original award, the Court ordered that Ms Foong recover nominal damages from the solicitors.

Orders