Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey & the persons listed in Schedule a to the Notice of Appeal trading as Sparke Helmore

The appeal before the New South Wales Court of Appeal concerned a claim by Shoal Bay Beach Constructions No. 1 Pty Ltd (the appellant) against its former solicitors, Mark Hickey and the persons trading as Sparke Helmore (the respondents), for professional negligence. The appellant alleged that the respondents' failure to advise it of a time limit within which it could extend the registration date for off-the-plan unit sales caused it to suffer loss when those contracts were rescinded.

The primary legal issue was whether the respondents breached their duty to advise the appellant by failing to reiterate or repeat advice regarding the time limit for extending the registration date, particularly when it appeared that officers of the appellant may have misunderstood previous advice given by the solicitors. A secondary issue arose from the appellant's attempt to raise a new ground of liability on appeal via a notice of contention, which had not been pursued at first instance.

The Court of Appeal held that the respondents had not breached their duty to advise. The solicitors had previously advised the appellant's officers of the relevant time limit. The Court found that there was no obligation to reiterate this advice closer to the expiry of the time limit, especially as the appellant had not demonstrated that the respondents knew or ought to have known that their previous advice had been misunderstood. Furthermore, the Court ruled that the appellant was impermissibly attempting to raise a new ground of liability on appeal, as this would prejudice the respondents and did not raise an issue of principle.

Consequently, the appeal was dismissed with costs. The cross-appeal was allowed with costs, and the orders of the court below were set aside. In their place, the proceedings were dismissed with costs.