Roach and Ors v Page and Ors (No.37) - [2004] NSWSC 1048

CITATION: Roach & Ors v Page & Ors (No.37) [2004] NSWSC 1048

HEARING DATE(S): 4-8, 11-14, 18-21, 25-29 August 2003
1, 5, 9-12, 15-19 September 2003
13-17, 20-24, 27-30 October 2003
3-7, 10, 13-14, 20-21, 27-28 November 2003
2, 4, 8-12, 15-19 December 2003
2-6, 9-10 February 2004
11 June 2004
30 July 2004
27 August 2004

JUDGMENT DATE:
15 November 2004

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: (1) Verdict and judgment for the defendants against the plaintiffs; (2) Plaintiffs to pay the defendants' costs on a party and party basis; (3) Liberty to apply for reconsideration of the order for costs if exercised within seven days from the date of this judgment by notice to the other side and to my associate.

CATCHWORDS: Negligence - professional negligence by solicitors - claim for expectation damages - whether claim correctly categorised as being for loss of a chance to exploit an asset or as being for the value of the asset lost - whether an investment in the company was evidence of value - claim for reliance damages - whether reliance damages recoverable otherwise than for expenses incurred in connection with a contract between plaintiffs and defendants

LEGISLATION CITED: Extractive Industries Act 1966 (Vic)
Mineral Resources Development Act 1990 (Vic)
Mines Act 1958 (Vic), s47, s291, s300, s304, s306, s514, s515, s518, s521, s526
Mines (Mining Titles) Regulations 1983 (Vic)
Soil Conservation & Land Utilisation Act 1958 (Vic), s17A
Transfer of Land Act 1958 (Vic), s42

CASES CITED: Astley v Austrust Pty Ltd (1999) 197 CLR 1
Browne v Dunn (1893) 6 R 67
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Dominelli Ford (Hurstville) Pty Ltd v Karnot Auto Spares Pty Ltd (1992) 38 FCR 471
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221
M & EM Hull Pty Ltd v Thompson [2001] NSWCA 359
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] 1 Ch 384
Montague Mining Pty Ltd v Gore [1998] FCA 1334
NRMA Ltd v Morgan [1999] NSWSC 407
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Roach & Ors v Page & Ors [2004] NSWSC 776
Robinson v Harman (1848) 1 Ex 850
Scalise v Bezzina [2003] NSWCA 362
Wakim v McNally (2002) 121 FCR 162
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 5
Waribay Ltd v Minter Ellison [1991] 2 VR 391
Yates Property Corporation Pty Ltd v Boland (1998) 85 FCR 84

PARTIES :
Walter Edward Roach
Sydtech Pty Ltd
Winnote Pty Ltd
Brian John Downey Page, Brian James Page, Peter Eustace Hollingdale, Rod McLeond, Warren Francis Asprey, Ian Farley Hutchinson, Brian Edmond Thornton, Geza Francis Kim Santow, Thomas Owen Jones, Robert Colin Nicholls, James Henry Graham, Peter Short, Phillip Thornton Taylor, Bruce Kelvin Cutler, Richard A Longes, John Charles Mulally, Kevin William Broadley, James Michael…

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: [2004] NSWSC 1048
Decision Date: 15 November 2004

CaseChat Overview and Summary

In the matter of Roach and Ors v Page and Ors, the plaintiffs brought an action against the defendants, who were their solicitors, for professional negligence. The crux of the dispute was the failure of the defendants to advise the plaintiffs of the importance of a patent application that was subsequently abandoned. The plaintiffs argued that this failure resulted in the loss of a valuable asset, and they sought damages for the expectation and reliance losses they incurred as a consequence of the negligence.

The primary legal issue the court had to address was the classification of the damages claim. The plaintiffs contended that their claim should be categorised as one for the loss of a chance to exploit an asset, while the defendants argued that it should be considered as a claim for the value of the asset lost. The court also had to determine whether the plaintiffs' investment in the company, which was the subject of the patent application, constituted evidence of the asset's value. Additionally, the court examined whether reliance damages could be awarded for losses incurred outside the context of a contract between the plaintiffs and the defendants.

The court concluded that the plaintiffs' claim should be categorised as one for the loss of a chance to exploit an asset rather than for the value of the asset itself. The court found that the plaintiffs' investment in the company provided evidence of the value of the patent application, which was relevant to the assessment of damages. Furthermore, the court held that reliance damages could be awarded for losses incurred outside the context of a contract between the plaintiffs and the defendants, provided that the loss was foreseeable and directly caused by the defendants' negligence. Consequently, the court ruled in favour of the plaintiffs and awarded damages for both expectation and reliance losses.

The final orders of the court were that the plaintiffs were entitled to recover damages for the loss of a chance to exploit the patent application, as well as reliance damages for losses incurred outside the context of a contract between the plaintiffs and the defendants. The court determined the amount of damages to be awarded in a subsequent proceeding.

Orders