Bathurst CJ at [1] Whealy JA at [106] Barrett JA at [579]
Decision:
1. Each appeal allowed in part.
2. In the event the parties are able to agree on orders to give affect to the conclusions reached in pars [101]-[102] of the Chief Justice's judgment, a draft form of orders should be delivered to the Chief Justice's Associate.
3. In the event the parties are unable to agree on the orders within 14 days, the proceedings are to be remitted to the trial judge for determination of the appropriate orders having regard to pars [101]-[102] of the Chief Justice's judgment.
4. The parties have liberty to file Notices of Motion seeking orders for costs of the appeal within 14 days of the date hereof.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PROFESSIONS AND TRADES - legal practitioners - professional negligence - breach of retainer - scope of duty - proof of loss or damage - causation - assessment of damages - advocate's immunity.
GUARANTEE AND INDEMNITY - discharge of surety - where security given for guaranteed obligations - whether later covenant affects security so as to discharge guarantors.
[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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AGLC
Pritchard v DJZ Constructions Pty Ltd [2012] NSWCA 196
Case
[2012] NSWCA 196
Decision Date
CaseChat Overview and Summary
In *Pritchard v DJZ Constructions Pty Ltd*, the New South Wales Court of Appeal considered appeals concerning professional negligence, breach of retainer, the scope of a legal practitioner's duty, proof of loss, causation, assessment of damages, and advocate's immunity. The case also touched upon issues of guarantee and indemnity, specifically the discharge of a surety where security is given for guaranteed obligations and whether a later covenant affects that security.
The primary legal issues before the Court of Appeal involved determining whether the legal practitioners had breached their retainer and, if so, the extent of their professional negligence. This included assessing the scope of their duty to the client, the necessary proof of loss or damage suffered as a result of any breach, and the causal link between the alleged negligence and that loss. The court also had to consider the application of advocate's immunity in the context of the proceedings. Furthermore, the court was required to examine principles of guarantee and indemnity, particularly concerning the circumstances under which a surety might be discharged from their obligations due to changes in the security provided for those obligations.
The Court of Appeal allowed each appeal in part. The court's reasoning, as reflected in the Chief Justice's judgment, addressed the specific findings regarding the scope of the retainer and the alleged breaches. The principles applied would have encompassed established common law doctrines of professional negligence and contract law, as well as relevant statutory provisions and case law concerning guarantees and indemnities. The court's decision aimed to provide a just and equitable outcome based on its findings of fact and application of legal principles.
The orders made by the Court of Appeal provided for the parties to agree on the specific orders to give effect to the court's conclusions within 14 days. If agreement could not be reached, the proceedings were to be remitted to the trial judge for determination of the appropriate orders. The parties were also granted liberty to seek orders for the costs of the appeal within the same 14-day period.
Orders
Orders of the court
1. Each appeal allowed in part.
2. In the event the parties are able to agree on orders to give affect to the conclusions reached in pars [101]-[102] of the Chief Justice's judgment, a draft form of orders should be delivered to the Chief Justice's Associate.
3. In the event the parties are unable to agree on the orders within 14 days, the proceedings are to be remitted to the trial judge for determination of the appropriate orders having regard to pars [101]-[102] of the Chief Justice's judgment.
4. The parties have liberty to file Notices of Motion seeking orders for costs of the appeal within 14 days of the date hereof.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]