Heenan v Di Sisto

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.