SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
McLennan v Meyer Vandenberg
Citation:
[2020] ACTCA 7
Hearing Date:
12 November 2019
DecisionDate:
5 February 2020
Before:
Burns and Mossop JJ and Robinson AJ
Decision:
See [110]
Catchwords:
APPEAL – DAMAGES – Scope of liability – solicitors’ negligent failure to advise on contract for sale of land – government buy‑back scheme applied to appellants’ asbestos affected property – whether scheme broke chain of causation – whether scheme fully restored the appellants – it did – further claim for economic loss – not established on the evidence
APPEAL – DAMAGES – Disappointment and distress – no recognised psychiatric illness – whether s 35 of the Civil Law (Wrongs) Act 2002 (ACT) applies to contract and tort – it does
APPEAL – GENERAL PRINCIPLES – Award of interest – not including period after Calderbank offer made.
[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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McLennan v Meyer Vandenberg [2020] ACTCA 7
Case
[2020] ACTCA 7
Decision Date
CaseChat Overview and Summary
The appeal concerned a claim by the appellants, Mr and Mrs McLennan, against their former solicitors, Meyer Vandenberg. The McLennans alleged that the solicitors were negligent in their advice regarding a contract for the sale of their property, which was affected by asbestos. A government buy-back scheme was subsequently applied to the property. The McLennans sought damages for economic loss and for disappointment and distress. The appeal was heard by Burns and Mossop JJ and Robinson AJ.
The court was required to determine whether the government buy-back scheme broke the chain of causation for the solicitors' alleged negligence, and if the scheme had fully restored the McLennans to their original position, thereby negating their claim for economic loss. Additionally, the court had to consider whether section 35 of the *Civil Law (Wrongs) Act 2002* (ACT), which deals with damages for disappointment and distress, applied to claims in contract as well as tort, and whether the appellants had established a recognised psychiatric illness. Finally, the court needed to determine the appropriate period for which interest could be awarded on any damages, specifically in light of a *Calderbank* offer made during the proceedings.
The court reasoned that the government buy-back scheme had indeed fully restored the McLennans, meaning their claim for economic loss was not established on the evidence. Regarding disappointment and distress, the court held that section 35 of the *Civil Law (Wrongs) Act 2002* (ACT) was applicable to claims in contract and tort, but that the appellants had not demonstrated a recognised psychiatric illness. The court also ruled that interest should not be awarded for the period after the *Calderbank* offer was made.