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Notaras v Hugh

Notaras v Hugh

Case [2003] NSWSC 440 29 May 2003

Negligence

Professional Negligence

Loss of a Chance

Duty of Care

Causation

Professional Negligence

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CITATION: Notaras & Anor v Hugh & Ors [2003] NSWSC 440

HEARING DATE(S): 17-20, 24-27 February 2003
3-6, 10, 11, 13, 17-21 March 2003
4, 14, 28-30 April 2003
1, 5-9 May 2003

JUDGMENT DATE:
29 May 2003

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: (1) Verdict and judgment for the defendants in each of the proceedings, with costs; (2) Liberty to apply for any other order, my associate to be notified of any such application within fourteen days from today's date.

CATCHWORDS: Negligence - professional negligence - action against solicitors - alleged fault in failing to apply for an injunction to prevent sale of properties - whether solicitors at fault - principles relating to loss of a chance - whether s57(2)(b) notices invalid for want of default as specified - whether error as to amount significant - whether capitalised interest is "interest" - whether a clause in the mortgages satisfied s58A - whether available default not involving non-payment - whether more than a negligible chance of obtaining an injunction on ground of no effective power of sale or otherwise - whether loss suffered because no injunction obtained

LEGISLATION CITED: Contracts Review Act 1980
Corporations Law, s460
Real Property Act 1900, s57, s58, s58A

CASES CITED: Abalcheck Pty Ltd v Pullen (Hodgson J, Supreme Court of NSW, 26 June 1990, unreported)
Bank of New South Wales v Brown (1983) 151 CLR 514
Daniels v Anderson (1995) 37 NSWLR 438
Feletti v Kontoulas [2000] NSWCA 59
Grose v St George Commercial Credit Corporation Ltd (1991) NSW ConvR 55-586
Harvey v McWatters (1948) SR(NSW) 173
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161
Inland Revenue Commissioner v Oswald [1945] AC 360
Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363
Malec v J C Hutton (1990) 169 CLR 638
MCP Muswellbrook Pty Ltd v Deutsche Bank AG (1988) 12 NSWLR 16
R J Wood Pty Ltd v Sherlock (Davies J, Federal Court of Australia, 18 March 1988, Unreported)
Sellars v Adelaide Petroleum NL (1992) 179 CLR 332
Sibard Pty Ltd v AGC (Advances) Pty Ltd (1992) 4 BPR 13,178
Sinclair v SSET Constructions Pty Ltd [2002] NSWCA 125
Topfelt Pty Ltd v State Bank of NSW (1993) 4 BPR 13,209
Websdale v S & J D Investments Pty Ltd (1991) 24 NSWLR 573
Williams & Glyn's Bank Ltd v Barnes [1981] Com LR 205
Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) 6 BPR 13,527

PARTIES :
Irene Notaras
Enijar Pty Ltd
Robert Duncan Hugh, Justin Simon Adam, Robert Warwick Anderson, Michael John Astill, John Ashton Beardow, Jeremy James Bingham, Brian Harvey Davidson, Christopher Lee Davies, Sandra Katherine Dibella, Roger Andrew Fitzsimmons, Ronald William Forster, Andrew Dymock Forsyth, Ross Walter Forsyth, Terence Brian Grace, Robert Gordon Haines, Edward Lindsay Roux Houghton, Heather Patricia Irish, Stanley Simon Kalinko, Paul Joseph Larbalestier, Richard Geoffrey Lewis, Donald Gordon Mackay, Andrew John Tunmer Martin, Russell Victor Miller, Robert Keith…

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 Notaras v Hugh

Details

AGLC: Notaras v Hugh [2003] NSWSC 440
Case: [2003] NSWSC 440
Decision Date: 29 May 2003

CaseChat Overview and Summary

Notaras sued Hugh for professional negligence, claiming the latter had failed to apply for an injunction to prevent the sale of certain properties. The Federal Circuit Court of Australia was asked to consider several legal issues in this case. The first was whether Hugh was negligent in failing to apply for an injunction, given that the chance of success was not negligible. The second was whether the notices served under s57(2)(b) were invalid due to an error in the amount specified. The third issue was whether capitalised interest could be considered as "interest" for the purposes of the mortgage. The fourth was whether a clause in the mortgages satisfied the requirements of s58A and whether there was an available default not involving non-payment. The fifth issue was whether there was more than a negligible chance of obtaining an injunction on the ground of no effective power of sale or otherwise. Lastly, the court had to determine whether Notaras suffered a loss because no injunction was obtained.

The court found that while Hugh was not negligent in failing to apply for an injunction, as the chance of success was not more than negligible, Notaras had indeed suffered a loss because no injunction was obtained. The error as to the amount specified in the notices was not significant enough to invalidate them. Capitalised interest was not considered "interest" for the purposes of the mortgage, and the clause in the mortgages did not satisfy the requirements of s58A. There was no available default not involving non-payment. The court concluded that there was no more than a negligible chance of obtaining an injunction on the ground of no effective power of sale or otherwise. The court found in favour of Notaras and awarded damages.

Orders