Simply Irresistible Pty Ltd v Couper - [2012] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0030

SIMPLY IRRESISTIBLE PTY LTD (ACN 007 139 451)	Appellant
	v
SAMUEL B COUPER & ORS	Respondents

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JUDGES	BUCHANAN, NEAVE JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 March 2012
DATE OF JUDGMENT	22 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 128
JUDGMENT APPEALED FROM	Simply Irresistible Pty Ltd v Couper [2010] VSC 601 (Kyrou J)

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LEGAL PRACTITIONERS – Solicitor – Breach of retainer – Negligence – Proceeding by former client against solicitor – Alleged failure to advise adequately about exercise of option to purchase land – Breach of retainer and negligence established – Nominal damages awarded – Whether trial judge erred in finding that breach did not cause loss – Whether trial judge erred in assessment of damages – Appeal dismissed.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Mr D L Bailey	Nevett Ford
For the Respondents	Mr P J Booth	Obst Legal

BUCHANAN JA:

I agree with Neave JA.

NEAVE JA:

This appeal arises out of trial division proceedings in which Simply Irresistible Pty Ltd (‘Simply’) sought damages from its former solicitors, Riordan & Partners (‘Riordans’),[1] for loss suffered as a result of an alleged breach of retainer and/or common law duty of care.
[1]The respondents were the Riordans’ partners.

Simply claimed that Riordans did not exercise due care and skill in failing to advise it to exercise an option to re-purchase an apartment located at Unit 20, 50 Bourke Street, Melbourne (‘the Apartment’) from Millennium Markets Pty Ltd (‘Millennium’).

The trial judge accepted that Riordans had breached its retainer and duty of care (‘tort duty’), but held that the breaches did not cause it any loss, because Simply’s directors had independently decided they would not exercise the option and would not have done so even if Riordans had given them appropriate advice. The judge awarded nominal damages of $1.00 for Riordans’ breach of retainer.

Although there were twelve grounds of appeal, the main issue in the appeal is whether his Honour correctly found that Riordans’ breach did not cause Simply any loss.

Background

By way of overview, Patricia Maher and her sons, Justice Maher and Dominus Maher (together, ‘the Mahers’) owned a number of commercial and residential properties either personally or through corporate entities, including Simply (collectively, ‘the Maher Group’).

Patricia Maher and Justice Maher were directors of Simply and other Maher Group companies, including Eighty-Sixth Eternity Pty Ltd and Bundoora All‑Weather Market Pty Ltd.

In early 1999, the Mahers agreed to sell a number of properties to Millennium (‘Security Properties’) in order to repay debts owed to Westpac Banking Corporation. The properties included the Apartment, in which Patricia Maher had lived under licence from Simply since 1990, and land upon which a trash and treasure market known as the Bundoora All-Weather Market (‘BAWM’) was conducted (‘Market Land’).

Although Patricia Maher was reluctant to include the Apartment in the sale to Millennium, she agreed that this should occur only to ‘secure’ representations…

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: [2012] VSCA 128
Decision Date: 22 June 2012

CaseChat Overview and Summary

Simply Irresistible Pty Ltd, the plaintiff, brought a proceeding against Mr. Couper, the defendant, concerning alleged professional negligence in his capacity as a solicitor. The dispute centred on whether Mr. Couper failed to adequately advise the plaintiff about exercising an option to purchase land, leading to a potential loss. The case was heard and determined in the Supreme Court of New South Wales.

The legal issues before the court were whether Mr. Couper breached his retainer with the plaintiff and whether this breach resulted in loss. Additionally, the court was tasked with assessing the appropriate level of damages, if any, should a breach be found. The plaintiff argued that Mr. Couper's failure to advise properly caused them to miss an opportunity to purchase the land, resulting in financial loss.

The court found that Mr. Couper did indeed breach his retainer by not providing adequate advice. However, it was determined that this breach did not cause any loss to the plaintiff. Consequently, the court awarded nominal damages to the plaintiff. The plaintiff appealed the decision, arguing that the trial judge erred in concluding that the breach did not cause loss and in assessing the damages. The appeal was dismissed by the court, upholding the original findings and damages awarded by the trial judge.

Orders