King v Benecke

[2014] NSWCA 399

Court of Appeal

New South Wales

Case Title:

King v Benecke

Medium Neutral Citation:

[2014] NSWCA 399

Hearing Date(s):

25 and 26 August 2014

Decision Date:

24 November 2014

Before:

Basten JA at [1];
Macfarlan JA at [31];
Ward JA at [115]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - professional negligence - appellant retained respondent solicitors to act in transactions concerning shareholdings in family farming and grazing business - causation - whether respondents' breaches of duty and retainer caused appellant economic loss - whether appellant's concern about his legal position caused him to pay more under settlement agreement than he would otherwise have paid - no basis for appellate intervention established - appeal dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5A, 5D, 5E

Cases Cited:

Fox v Percy [2003] HCA 22; 214 CLR 118
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 247 CLR 613

Category:

Principal judgment

Parties:

George Berkeley Ewart King (Appellant)
Ian John Benecke (First Respondent)
Stephen Edward Martin (Second Respondent)
Brenden John Miller (Third Respondent)
Michael Geoffrey Anthony Holden (Fourth Respondent)

Representation

- Counsel:

Counsel:
A J McInerney SC/M F Newton (Appellant)
I Pike SC/J J Hutton (Respondents)

- Solicitors:

Solicitors:
Thompson Eslick Solicitors (Appellant)
Yeldham Price O'Brien Lusk (Respondents)

File Number(s):

CA 2013/277479

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Harrison J

- Date of Decision: 

23 August 2013

- Citation:

King v Benecke [2013] NSWSC 568

- Court File Number(s):

SC 2009/297857

HEADNOTE

[This headnote is not to be read as part of the judgment]

In about August 2000 the appellant, Mr George King, retained the respondent, Mr Ian Benecke, to act for him in transactions with Mr King's father and uncle, Berkeley King and Peter King respectively. The transactions related to shareholdings in companies controlling the King family's farming and grazing business conducted on properties collectively known as "Coombing Park". By those transactions, George King had sought to acquire control of the properties from his father and uncle.

On 5 December 2008, after several years of disputation concerning distribution of the family property and various unsuccessful attempts at mediation, George King agreed to pay to his family $3,550,000 in settlement of the disputes.

In 2009 George King commenced proceedings against Mr Benecke and his partners claiming damages for professional negligence. He alleged that as a result of Mr Benecke's breaches of duty and retainer, he was required to pay to his family under the settlement agreement in December 2008 more to acquire complete and effective ownership of the properties than would…