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Leda v Weerden (No 3)

Leda v Weerden (No 3)

Case [2006] NSWSC 220 29 March 2006

Costs

Limitation Periods

Admissibility of Evidence

Res Judicata

Civil Litigation & Procedure

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CITATION: Leda v Weerden (No 3) [2006] NSWSC 220

HEARING DATE(S): 29/03/06

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 03/29/2006

DECISION: Costs to plaintiff to 30 January 2006. Costs to defendant on an indemnity basis from 31 January 2006. interest on costs paid by defendant on ratio of costs allowed on assessment to total costs. Costs to cross defendant. Plaintiff to indemnify.

CATCHWORDS: PROCEDURE - Costs - Whether in action for negligent advice, causation and reliance should be treated as discrete issues - Whether four days in the week immediately before trial a reasonable period to keep open an offer under the Uniform Civil Procedure Rules 2005, r 20.26(7)(b) - Whether the Court should order otherwise than that unsuccessful plaintiff have costs on ordinary basis today rejected offer that was more favourable was made and defendant have costs on an indemnity basis thereafter under r 42.15(2)(b)(i) - Whether plaintiff should indemnify defendant with respect to order that defendant pay cross defendant's costs of a cross claim alleging failure to provide proper instructions - Whether defendant should be ordered to pay interest on costs under the Civil Procedure Act 2005, s 101(4)

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Fair Trading Act 1987

CASES CITED: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2
Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126

PARTIES: Leda Pty Ltd - Plaintiff
John Weerden - Defendant/Cross Claimant
Leisure Management Pty Ltd - Cross Defendant

FILE NUMBER(S): SC 3503/05

COUNSEL: Mr M Dicker - Plaintiff/Cross Defendant
Mr R McHugh - Defendant/Cross Claimant

SOLICITORS: Paul Bard Solicitors
Blake Dawson Waldron Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 29 MARCH 2006

3503/05 LEDA PTY LTD v JOHN WEERDEN (NO 3)

EX TEMPORE JUDGMENT

1 I published my reasons in this matter on 10 March 2006. I found that Mr Weerden owed a duty of care to Leda which was breached, but I found that that breach did not materially contribute to Leda’s loss and on that basis, Leda failed. As I said at [84] of my reasons:

“But in this case, I do not see Mr Weerden’s failures in his advice as having materially contributed to Leda’s loss. Leda had the unqualified advice of Mr Weerden but they also had vendors’ warranties and they had advice that they could sue the vendors and Price Waterhouse if the losses were not available to be offset against assessable income of the Tuggeranong Trust. And Leda was aware of the risks it said Mr Weerden failed to bring to its attention and went ahead despite the alleged shortcomings in his advice. Even if it could be said, and I doubt that it could, that Mr Weerden’s failures played some part in the losses suffered by Leda, they were trifling. They could not, in my view, be regarded as material.”

2 The plaintiff argues…

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 Leda v Weerden (No 3)

Details

AGLC: Leda v Weerden (No 3) [2006] NSWSC 220
Case: [2006] NSWSC 220
Decision Date: 03/29/2006

CaseChat Overview and Summary

The case of Leda v Weerden (No 3) involved the plaintiff, Leda, who sued the defendant, Weerden, for negligent advice given in relation to a property transaction. The matter was heard in the Supreme Court of New South Wales. The dispute centred around various issues, including whether the causation and reliance should be treated as separate issues in a negligent advice action, the reasonableness of an offer remaining open for four days prior to the trial, and the appropriate allocation of costs between the parties under the Uniform Civil Procedure Rules and the Civil Procedure Act 2005.

The court was tasked with determining whether causation and reliance should be treated as distinct issues in the context of a negligent advice claim. Additionally, the court had to decide whether the offer made by the plaintiff four days before the trial was reasonable under the Uniform Civil Procedure Rules 2005. The court also considered whether it should order that the plaintiff bear costs on the ordinary basis for rejecting a more favourable offer made by the defendant, and whether the defendant should have indemnity costs thereafter. Furthermore, the court examined whether the plaintiff should indemnify the defendant for the order that the defendant pay the cross-defendant's costs of a cross-claim alleging failure to provide proper instructions. Lastly, the court deliberated on whether the defendant should be ordered to pay interest on costs under the Civil Procedure Act 2005.

The court found that causation and reliance should not be treated as discrete issues in the context of a negligent advice action. It determined that the offer made by the plaintiff four days before the trial was reasonable. Consequently, the court ordered that the plaintiff bear costs on the ordinary basis for rejecting the defendant's more favourable offer, while the defendant was to have indemnity costs thereafter. The court also ruled that the plaintiff should indemnify the defendant in relation to the order that the defendant pay the cross-defendant's costs of the cross-claim. Finally, the court held that the defendant should be ordered to pay interest on costs under the Civil Procedure Act 2005.

The court's final orders were that the plaintiff bear costs on the ordinary basis for rejecting the defendant's offer, while the defendant was to have indemnity costs thereafter. The plaintiff was also ordered to indemnify the defendant in relation to the cross-defendant's costs. Furthermore, the defendant was directed to pay interest on costs under the Civil Procedure Act 2005.

Orders