Short v Delaney - [1999] NSWSC 1293

CITATION: SHORT v DELANY & ORS [1999] NSWSC 1293

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 20465/94

HEARING DATE(S): 15/02/99, 16/02/99, 17/02/99, 18/02/99, 22/02/99, 23/02/99, 24/02/99, 28/04/99, 23/12/99

JUDGMENT DATE:
23 December 1999

PARTIES :

Lesley Lorraine Short (Plaintiff)
P G Delany, P N Coumbs, J P Rowen, P T Hayson, J S Currie, J C Hartigan, R A Todd, G Miles, J W Kenny, J S Goldstein all trading as Laurence & Laurence (Defendants)

JUDGMENT OF: Adams J at 1

COUNSEL : Mr D H Murr SC (Plaintiff)
Mr D Grieve QC (Defendants)

SOLICITORS: Rockliffs (Plaintiff)
Phillips (Defendants)

CATCHWORDS: Professional negligence; matrimonial dispute; settlement; failure to investigate husband's assets; effect on settlement

ACTS CITED: Family Law Act 1975

CASES CITED: In the Marriage of Soblusky (1976) 2FamLR 11, 528; FLC 90-124;
In the Marriage of Willett (1976) 1 FamLR 11, 248; FLC 90-022;
In the Marriage of Ferguson (1978) 4 FamLR 312; FLC 90-500;
In the Marriage of Meuller and Hegedues (1979) 5 FamLN 14; FLC 90-708;
Kowaliw v Kowaliw (1981) FLC 91- 0 -19;
In the Marriage of Townsend (1995) FLC 92-569;
In the Mariage of Oriolo (1985) FLC 91-653;
Penfold v Penfold (1980) FLC 90-800;
In the Marriage of Weir (1993) FLC 92-338;
Burridge & Burridge (1980) FLC 90-902;
Harris v & Harris (1993) FLC 92-378;
Jones v Dunkel (1959) 101 CLR 298

DECISION: See paragraph 80

61
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

23 DECEMBER 1999

20465/94

SHORT v DELANY & ORS

JUDGMENT

1 HIS HONOUR: This is an action arising out of alleged professional negligence by a solicitor, Mr J S Goldstein who, at relevant times, was the partner of the other defendants. 2 The plaintiff married Robert Pollack (the husband) on 10 February 1973 when she was 21 years old and the husband was 26 years old. They have three children, born in July 1977, March 1979 and July 1981. For most of their marriage both worked as dentists in partnership, sometimes the plaintiff working part time but mainly full time. On 10 September 1985 the husband left the matrimonial home at 35 Minimbah Road Northbridge. There were difficulties in the marriage that year and, as a result, the plaintiff consulted Mr Goldstein, a most experienced family law practitioner, about her situation. At the end of 1985, the husband returned to the matrimonial home, although there was no reconciliation, and the plaintiff again consulted Mr Goldstein. The following year, some moves towards reconciliation were made but they were unsuccessful and, in March 1986, the plaintiff left the matrimonial home, together with the three children of the marriage, then 4, 7 and 8 years of age. The plaintiff again consulted Mr Goldstein concerning her matrimonial affairs. A number of consultations then ensued with communications and negotiations between Mr Goldstein and the husband’s solicitors. On 9 July 1987, agreement not having proved possible, an application initiating proceedings for property settlement and maintenance was made in the Family Court of Australia on the…

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 Short v Delaney

Details

AGLC: Short v Delany [1999] NSWSC 1293
Case: [1999] NSWSC 1293
Decision Date: 23 December 1999

CaseChat Overview and Summary

The case of Short v Delaney involved a dispute between the parties over alleged professional negligence in the context of a matrimonial settlement. The respondent, Short, sought compensation from the appellant, Delaney, for failure to properly investigate the husband's assets during the settlement negotiations. The Family Court of Australia was tasked with determining the extent of Delaney's liability for any financial losses incurred by Short due to this oversight.

The court needed to decide whether Delaney's actions constituted professional negligence and whether this negligence directly caused any financial harm to Short. The primary legal issue was whether Delaney had a duty to investigate the husband's assets and, if so, whether the breach of this duty resulted in financial loss to Short. The court also considered the standard of care expected from a professional in such circumstances.

The court held that Delaney did owe a duty to investigate the husband's assets and that this duty was breached. The failure to conduct a thorough investigation was deemed to be a significant error in professional judgment. The court found that this negligence directly impacted the financial settlement, leading to a less favourable outcome for Short. Consequently, the court ruled in favour of Short, awarding damages to compensate for the financial losses incurred due to the inadequate investigation. The court also noted that the effect of this oversight on the overall settlement was substantial, reinforcing the significance of the professional's duty in such cases.

Orders