New South Wales
Court of Appeal
CITATION: Heenan v Di Sisto & Ors [2008] NSWCA 25 HEARING DATE(S): 8 February 2008
JUDGMENT DATE:
11 March 2008JUDGMENT OF: Mason P at 1; Giles JA at 2; Mathews AJA at 62 DECISION: (1) Appeal allowed in part and cross-appeal allowed; (2) Set aside the order that the fourth defendant pay damages to the plaintiff in the sum of $505,898.00, and in lieu thereof order that the fourth defendant pay damages to the plaintiffs in the amount calculated by the parties and advised to the Registrar in accordance with order 3; (3) Direct the parties to calculate the damages payable in accordance with these reasons and advise the Registrar of the amount within 10 days from this date; (4) Liberty to apply within 21 days from this date in the event that the parties are unable to agree upon the calculation of damages in accordance with order 3, application to be made in the first instance by letter to the Associate to Giles JA; (5) Respondents pay 75 per cent of the appellant’s costs of the appeal, and to have a certificate under the Suitors Fund Act if otherwise entitled thereto. CATCHWORDS: Damages - solicitor's negligence - sale of adjacent properties - failure to advise to make contracts interdependent - purchaser sought to complete on one only - eventually did not complete on either - loss on re-sale - whether loss caused by negligence - assessment of loss according to the possibilities or probabilities - contract price as correct starting-point for assessment of loss on re-sale - discretionary interest. CATEGORY: Principal judgment CASES CITED: Allied Maples Group Ltd v Simmons & Simmons (1995) 1 WLR 1602;
Bradshaw v McEwens Pty Ltd (HC, 27 April 1951, unreported);
Daniels v Anderson (1995) 37 NSWLR 438;
Di Sisto v Skyworld Pty Ltd [2005] NSWSC 723;
Gove v Montague Mining Pty Ltd [2000] FCA 1214;
Hall v Foong (1995) 65 SASR 281;
Hanflex Pty Ltd v NS Hope & Associates (1990) 2 Qd R 218;
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640;
Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281;
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638;
Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149;
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332;
Sussman v Symes (McLelland CJ in Eq, 4 July 1994, unreported);
Sykes v Midland Bank Executor & Trustee Co Ltd (1971) 1 QB 113;
WCW Pty Ltd v Bolster (Full Federal Court, 6 January 1993, unreported);
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485;PARTIES: Timothy John Heenan - Appellant
Pasquale Di Sisto - First Respondent
Angela Di Sisto - Second Respondent
Susanne More Di Sisto - Third RespondentFILE NUMBER(S): CA 40794/06 COUNSEL: D Davies SC & B…
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- AGLC
- Heenan v Di Sisto [2008] NSWCA 25
- Case
- [2008] NSWCA 25
- Decision Date
CaseChat Overview and Summary
In *Heenan v Di Sisto*, the Court of Appeal of New South Wales considered an appeal and cross-appeal concerning a claim for damages arising from alleged solicitor's negligence. The dispute involved the sale of adjacent properties where the purchasers sought to complete the purchase of only one of the properties, ultimately failing to complete either. The vendors (the plaintiffs) claimed they suffered loss on the subsequent re-sale of the properties due to the solicitor's failure to advise them to make the contracts interdependent.
The primary legal issues before the Court of Appeal were whether the solicitor's conduct constituted negligence, and if so, whether that negligence caused the loss suffered by the vendors. The court was also required to determine the correct method for assessing the quantum of damages, specifically considering whether the loss should be assessed according to possibilities or probabilities, and whether the original contract price was the appropriate starting point for calculating the loss on re-sale. The court also had to consider the award of discretionary interest.
The Court of Appeal found that the solicitor's failure to advise the vendors to make the contracts interdependent was negligent. However, the court adjusted the initial assessment of damages. The reasoning involved a careful consideration of causation and the assessment of loss, acknowledging that the calculation of damages in such circumstances requires an assessment based on probabilities. The court ultimately determined that the original contract price should serve as the correct starting point for assessing the loss on re-sale.
The Court of Appeal allowed the appeal in part and the cross-appeal. The order for the fourth defendant to pay damages of $505,898.00 was set aside. In its place, the court ordered that the fourth defendant pay damages to the plaintiffs in an amount to be calculated by the parties in accordance with the court's reasons and advised to the Registrar within 10 days. Liberty to apply was granted within 21 days if the parties could not agree on the calculation. The respondents were ordered to pay 75 per cent of the appellant's costs of the appeal.
The primary legal issues before the Court of Appeal were whether the solicitor's conduct constituted negligence, and if so, whether that negligence caused the loss suffered by the vendors. The court was also required to determine the correct method for assessing the quantum of damages, specifically considering whether the loss should be assessed according to possibilities or probabilities, and whether the original contract price was the appropriate starting point for calculating the loss on re-sale. The court also had to consider the award of discretionary interest.
The Court of Appeal found that the solicitor's failure to advise the vendors to make the contracts interdependent was negligent. However, the court adjusted the initial assessment of damages. The reasoning involved a careful consideration of causation and the assessment of loss, acknowledging that the calculation of damages in such circumstances requires an assessment based on probabilities. The court ultimately determined that the original contract price should serve as the correct starting point for assessing the loss on re-sale.
The Court of Appeal allowed the appeal in part and the cross-appeal. The order for the fourth defendant to pay damages of $505,898.00 was set aside. In its place, the court ordered that the fourth defendant pay damages to the plaintiffs in an amount to be calculated by the parties in accordance with the court's reasons and advised to the Registrar within 10 days. Liberty to apply was granted within 21 days if the parties could not agree on the calculation. The respondents were ordered to pay 75 per cent of the appellant's costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed in part and cross-appeal allowed; (2) Set aside the order that the fourth defendant pay damages to the plaintiff in the sum of $505,898.00, and in lieu thereof order that the fourth defendant pay damages to the plaintiffs in the amount calculated by the parties and advised to the Registrar in accordance with order 3; (3) Direct the parties to calculate the damages payable in accordance with these reasons and advise the Registrar of the amount within 10 days from this date; (4) Liberty to apply within 21 days from this date in the event that the parties are unable to agree upon the calculation of damages in accordance with order 3, application to be made in the first instance by letter to the Associate to Giles JA; (5) Respondents pay 75 per cent of the appellant's costs of the appeal, and to have a certificate under the Suitors Fund Act if otherwise entitled thereto.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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