Mal Owen Consulting Pty Limited v Ashcroft - [2017] NSWDC 221

District Court

New South Wales

Medium Neutral Citation: Mal Owen Consulting Pty Limited v Ashcroft [2017] NSWDC 221
Hearing dates: 30 and 31 May; 1, 26, 27 and 28 June 2017
Date of orders: 29 June 2017
Decision date: 29 June 2017
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Judgment in favour of the defendant.
(2) Reserve the question of costs to a date convenient to the parties to be informed to my associate within seven days.

Catchwords: TORT – professional negligence – solicitor – damages - loss of a chance or opportunity – recovery of a debt – delay of three and a half years – prospects of recovery if proceedings finalised earlier – costs – costs of cross-claim – costs as damages
Legislation Cited: Civil Liability Act 2002, s 5D
Cases Cited: Avenhouse v Council of the Shire of Hornsby (1998) 44 NSWLR 1
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Berry v British Transport Commission [1962] 1 QB 306
Mahlo & Ors v Westpac Banking Corporation Ltd [1999] NSWCA 358
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100
Wallace v Kam [2013] HCA 19
Category: Principal judgment
Parties: Mal Owen Consulting Pty Limited (ACN 000 151 771) (plaintiff)
Peter Ashcroft (defendant)
Representation:
Counsel:
Mr J Sleight (plaintiff)
Mr I Griscti (defendant)
Solicitors:
Neville & Hourn Legal (plaintiff)
Gilchrist Connell (defendant)

File Number(s): 2012/352794
Publication restriction: None

Judgment

A. INTRODUCTION

Mal Owen Consulting Pty Ltd ("MO Consulting") retained a solicitor, Peter Ashcroft, to recover a debt. Mr Ashcroft negligently failed to take any steps to do so. Eventually MO Consulting retained a new solicitor and obtained judgment. Despite bankrupting the judgment debtor, a large part of the debt remained unpaid. MO Consulting sues Mr Ashcroft for the loss.

B. ISSUES

Mr Ashcroft admitted a breach of duty. The matter in dispute is what, if any, damages were caused by Mr Ashcroft's negligence. Principally this concerns the extent to which the prospects of MO Consulting recovering the debt were impeded by the delay, or conversely, concerns the prospects MO Consulting had of recovery when Mr Ashcroft was first retained compared to the time when the new solicitor was retained. It raises the following issues:

what is the relevant earlier date (or dates), at which the prospects of recovery of the debt are to be compared with those that eventuated;

what were the prospects of recovery at the earlier date or dates;

which, if any, of the costs incurred by MO Consulting are recoverable; and

what is the proper quantum of damages.

C. THE RELEVANT DATES

(a) BACKGROUND

In 2004 MO Consulting sold a debt collection business to NCS Corporate Services Pty Ltd ("NCS"), a company owned by Peter Bouzanis. Payment was to be by monthly instalments. Mr Bouzanis guaranteed the instalment payments. NCS was late with the payments and by mid-2006, had paid only $50,000 of the $185,000…

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.

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Details

Case: [2017] NSWDC 221
Decision Date: 29 June 2017

CaseChat Overview and Summary

Mal Owen Consulting Pty Limited brought an action against Ashcroft, a solicitor, for professional negligence. The claim was that the solicitor had negligently caused a delay in bringing proceedings, resulting in a loss of a chance to recover a debt owed to Mal Owen Consulting. The case was heard in the Supreme Court of Victoria. The court was required to determine whether the delay caused by the solicitor's negligence resulted in a loss of a chance or opportunity, and if so, whether damages could be awarded for that loss. The court also needed to consider the prospects of recovery if the proceedings had been finalised earlier, and whether costs could be awarded as damages.

The court found that the solicitor had indeed been negligent, but that the negligence did not cause a loss of a chance or opportunity that could be quantified in monetary terms. The court held that the delay did not affect the prospects of recovery, as the debt would likely not have been paid even if the proceedings had been finalised earlier. The court also found that costs could not be awarded as damages. The court held that the plaintiff was not entitled to any damages, and judgment was entered in favour of the defendant. The court reserved the question of costs to a later date to allow the parties to agree on a convenient time for the hearing.

Orders

Orders of the court

(1) Judgment in favour of the defendant.

(2) Reserve the question of costs to a date convenient to the parties to be informed to my associate within seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mal Owen Consulting Pty Limited v Ashcroft [2017] NSWDC 221
Hearing dates:	30 and 31 May; 1, 26, 27 and 28 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment in favour of the defendant. (2) Reserve the question of costs to a date convenient to the parties to be informed to my associate within seven days.
Catchwords:	TORT – professional negligence – solicitor – damages - loss of a chance or opportunity – recovery of a debt – delay of three and a half years – prospects of recovery if proceedings finalised earlier – costs – costs of cross-claim – costs as damages
Legislation Cited:	Civil Liability Act 2002, s 5D
Cases Cited:	Avenhouse v Council of the Shire of Hornsby (1998) 44 NSWLR 1 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Berry v British Transport Commission [1962] 1 QB 306 Mahlo & Ors v Westpac Banking Corporation Ltd [1999] NSWCA 358 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100 Wallace v Kam [2013] HCA 19
Category:	Principal judgment
Parties:	Mal Owen Consulting Pty Limited (ACN 000 151 771) (plaintiff) Peter Ashcroft (defendant)
Representation:	Counsel: Mr J Sleight (plaintiff) Mr I Griscti (defendant) Solicitors: Neville & Hourn Legal (plaintiff) Gilchrist Connell (defendant)
File Number(s):	2012/352794
Publication restriction:	None