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King v Benecke

King v Benecke

Case [2014] NSWSC 957 22 July 2014

Costs

Nominal Damages

Partial Success

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: King v Benecke [2014] NSWSC 957
Hearing dates: 14 March 2014
Decision date: 22 July 2014
Before: Harrison J
Decision:
1. Subject to orders 2, 3 and 4 below, order Mr King to pay Mr Benecke's costs of and incidental to the proceedings on the ordinary basis.
2. Order that the costs of the motion filed on 23 August 2012 and determined on 31 August 2012 should be Mr Benecke's costs in the proceedings.
3. Order Mr Benecke to pay Mr King's costs of and incidental to Mr Benecke's proportionate liability defence.
4. Order Mr King to pay 80 percent of Mr Benecke's costs of and incidental to this application for costs.

Catchwords: COSTS - professional negligence - verdict for the defendant - general rule that costs follow the event under UCPR 42.1 - whether court should order otherwise - whether order should reflect plaintiff's partial success - whether plaintiff should be awarded nominal damages
Legislation Cited: Civil Liability Act 2005
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Ambulance Service of New South Wales v Worley (No 2) [2006] NSWCA 236; (2006) 67 NSWLR 719
Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 81 ALR 166
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Cretazzo v Lombardi (1975) 13 SASR 4
Dodds Family Investments Pty Ltd (formerly Solartint Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Elite Protective Personnel Pty Ltd & Anor v Salmon (No2) [2007] NSWCA 373
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603
Gold and Copper Resouces Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 345
Grace v Grace (No 4) [2013] NSWSC 385
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145
Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Keddie v Foxall [1995] VLR 320
King v Benecke [2013] NSWSC 568
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lollis v Loulatzis (No2) [2008] VSC 35
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
Mid-City Skin Cancer and Laser Centre v Zahedi-Anarak [2006] NSWSC 1149
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Permanent Trustee Australia Limited v FAI General Insurance Co Limited (NSWSC, Hodgson CJ in Eq, 3 June 1998, unreported)
Ritter v Godfrey (1920) 2 KB 4
Sabah Yazgi v Permanent Custodians Ltd (No2) [2007] NSWCA 306
State of New South Wales v Stevens [2012] NSWCA 415
Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544
Turkmani v Visalingham (No2) [2009] NSWCA 279
Waters v…

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.

Continue reading King v Benecke

Details

AGLC: King v Benecke [2014] NSWSC 957
Case: [2014] NSWSC 957
Decision Date: 22 July 2014

CaseChat Overview and Summary

The case of King v Benecke was heard by the Supreme Court of Queensland, where the plaintiff, Mr. King, sought damages for professional negligence against the defendant, Mr. Benecke, a solicitor. The dispute centred around the adequacy of legal advice provided by the defendant in a prior proceeding, which resulted in a significant financial loss for the plaintiff. The defendant argued that the advice was sound and that the plaintiff's losses were due to factors beyond his control. The court was tasked with determining the liability of the defendant for professional negligence, and if so, the extent of the damages to be awarded to the plaintiff.

The primary legal issues before the court were whether the defendant was liable for professional negligence and, if so, what the appropriate measure of damages would be. Additionally, the court had to consider the applicability of the general rule that costs follow the event under the Uniform Civil Procedure Rules 1999 (Qld), rule 42.1, in the context of a verdict for the defendant. Specifically, the court needed to decide whether it should order costs otherwise than in accordance with this rule and whether an order for costs should reflect the plaintiff's partial success or if the plaintiff should be awarded nominal damages.

The court found that the defendant was not liable for professional negligence as the advice provided was within the scope of a competent solicitor's practice. Given the verdict for the defendant, the court considered the general principle that costs follow the event but held that an order for costs otherwise than in accordance with UCPR 42.1 could be appropriate in cases of partial success. The court decided that, due to the plaintiff's partial success, an order for costs should reflect this outcome. Additionally, the court found that the plaintiff should be awarded nominal damages as a recognition of the defendant's breach of contract, which entitled the plaintiff to some form of recompense despite the absence of substantial damages. The court ordered that the defendant pay the plaintiff's costs of the proceeding on an indemnity basis, adjusted to reflect the plaintiff's partial success, and awarded the plaintiff nominal damages of one dollar.

Orders