Ralston v Jurisich - [2017] NSWCA 63

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ralston v Jurisich [2017] NSWCA 63
Hearing dates: 06/03/2017
Date of orders: 03 April 2017
Decision date: 03 April 2017
Before: Ward JA; Emmett AJA; McDougall J
Decision:
Appeal dismissed with costs.

Catchwords: PROFESSIONAL NEGLIGENCE – where client suing former solicitors – where client incurred significant income tax liability after realising shares in a company – failure to advise – whether the respondent had proved factual causation – how factual causation is to be proved – whether primary judge erred in his implicit findings as to the loss caused by the breach – APPEALS – principles of appellate review – function of appellate court in relation to fact finding at trial
Legislation Cited: Civil Liability Act 2002 (NSW), s 50
Evidence Act 1995 (NSW)
Fair Work Act 2009 (Cth)
Income Tax Assessment Act 1936 (Cth)
Cases Cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Fox v Percy (2003) 214 CLR 118
Hunt and Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613
Nocton v Lord Ashburton [1914] AC 932
Strong v Woolworths Ltd (2012) 246 CLR 182
Takla v Nasr [2013] NSWCA 435
Wallace v Kam (2012) 250 CLR 375
Warren v Coombes (1979) 182 CLR 531
Category: Principal judgment
Parties: John Malbon Ralston (First Appellant) and 8 others
Helen Jurisich (Respondent)
Representation:
Counsel:
J C Giles SC (Appellants)
S R Donaldson SC / M Sealey (Respondent)
Solicitors:
Yeldham Price O’Brien Lusk (Appellants)
TressCox Lawyers (Respondent)

File Number(s): 2016/174548
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2016] NSWDC 82

Date of Decision:

13/05/2016

Before:

P Taylor SC DCJ

File Number(s):

2014/82132

Judgment

WARD JA: I have had the advantage of reading in draft the judgment of McDougall J and agree that, for the reasons his Honour gives, the appeal should be dismissed with costs.
EMMETT AJA: The question in this appeal is whether the appellants, a firm of solicitors (the Solicitors), should be held liable for the amount of income tax that the respondent, Mrs Helen Jurisich, was required to pay in connection with the realisation of shares she held in her family company (the Company). She realised the shares by means of a buy-back and incurred a liability for tax of a substantial sum on the basis that the money paid to her by the Company was deemed to be a dividend.
Mrs Jurisich sued the Solicitors in the District Court on the basis that they should have advised her to obtain tax advice before proceeding with the buy-back. The way in which Mrs Jurisich put her case in her statement of claim was by no means clear. The allegations made in the statement of claim, as relevant, may be restated as follows:

In July 2011, the Company and the other shareholders in the Company proposed that the Company be…

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 Ralston v Jurisich

Details

AGLC: Ralston v Jurisich [2017] NSWCA 63
Case: [2017] NSWCA 63
Decision Date: 03 April 2017

CaseChat Overview and Summary

The appeal concerned a claim by the appellant, Mr Ralston, against his former solicitors, the respondents, for professional negligence. Mr Ralston alleged that the solicitors failed to advise him adequately regarding the tax implications of realising shares in a company, which resulted in a significant income tax liability. The primary judge had found in favour of the solicitors, and Mr Ralston appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether Mr Ralston had proven factual causation for the loss he claimed to have suffered due to the alleged negligence, and whether the primary judge had erred in his implicit findings regarding the loss caused by the breach of duty. The Court was also required to consider the principles of appellate review concerning fact-finding at trial.

Ward JA, Emmett AJA and McDougall J dismissed the appeal. The Court affirmed that the onus was on the appellant to prove, on the balance of probabilities, that the solicitors' breach of duty caused the loss claimed. The Court reviewed the evidence and the primary judge's findings, concluding that the appellant had not established the necessary causal link between the solicitors' advice and the tax liability incurred. The principles of appellate review were applied, and the Court found no error in the primary judge's assessment of the facts and the application of the law to those facts. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ralston v Jurisich [2017] NSWCA 63
Hearing dates:	06/03/2017
Date of orders:	03 April 2017
Decision date:	03 April 2017
Before:	Ward JA; Emmett AJA; McDougall J
Decision:	Appeal dismissed with costs.
Catchwords:	PROFESSIONAL NEGLIGENCE – where client suing former solicitors – where client incurred significant income tax liability after realising shares in a company – failure to advise – whether the respondent had proved factual causation – how factual causation is to be proved – whether primary judge erred in his implicit findings as to the loss caused by the breach – APPEALS – principles of appellate review – function of appellate court in relation to fact finding at trial
Legislation Cited:	Civil Liability Act 2002 (NSW), s 50 Evidence Act 1995 (NSW) Fair Work Act 2009 (Cth) Income Tax Assessment Act 1936 (Cth)
Cases Cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Fox v Percy (2003) 214 CLR 118 Hunt and Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 Nocton v Lord Ashburton [1914] AC 932 Strong v Woolworths Ltd (2012) 246 CLR 182 Takla v Nasr [2013] NSWCA 435 Wallace v Kam (2012) 250 CLR 375 Warren v Coombes (1979) 182 CLR 531
Category:	Principal judgment
Parties:	John Malbon Ralston (First Appellant) and 8 others Helen Jurisich (Respondent)
Representation:	Counsel: J C Giles SC (Appellants) S R Donaldson SC / M Sealey (Respondent) Solicitors: Yeldham Price O’Brien Lusk (Appellants) TressCox Lawyers (Respondent)
File Number(s):	2016/174548
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2016] NSWDC 82 Date of Decision: 13/05/2016 Before: P Taylor SC DCJ File Number(s): 2014/82132