Sutherland v GHR Accounting Group Pty Ltd - [2019] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation: Sutherland v GHR Accounting Group Pty Ltd [2019] NSWSC 295
Hearing dates: 28 September 2018
Date of orders: 25 March 2019
Decision date: 25 March 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The first defendant’s notice of motion filed 7 June 2017 is dismissed.

(2) Leave is granted to the plaintiff to join Quardatus Pty Limited as second plaintiff.

(3) The plaintiffs are to file and serve the proposed second amended statement of claim within 14 days.
(4) Costs are reserved.
Catchwords:
PRACTICE AND PROCEDURE - Pleadings - Summary dismissal - Statement of claim – Whether the plaintiff failed to prosecute the proceedings with due despatch – Whether no reasonable cause of action disclosed

TORT - Negligence - Negligent advice - Failure to warn – Obvious risk – Whether risk of loss was obvious
TORT - Negligence —- Negligent advice - Failure to warn – Causation – Whether the advice caused the plaintiff’s loss
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E, 5H, 5F
Corporations Act 2001 (Cth), s 601AH
Federal Court of Australia Act 1976 (Cth)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 12.7(1), 13.4(1)(b), 19.4
Cases Cited: Adeels Palace (2009) 239 CLR 420; (2009) 260 ALR 628
Citicorp Australia Ltd v O’Brien (1996) 40 NSWLR 398
Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Jaber v Rockdale City Council [2008] NSWCA 98
King v Western Sydney Local Health Network [2013] NSWCA 162
Laoulach v El Khoury [2010] NSWSC 1009 at [167]
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Re Auzhair Supplies Pty Ltd (in liq) [2013] NSWSC 1
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Sutherland v GHR Accounting [2015] NSWSC 1946
Sutherland v GHR Accounting [2017] NSWSC 100
Sutherland v GHR Accounting (No 3) [2017] NSWSC 373
Wallace v Kam [2012] NSWCA 82
Wardley Australia Limited v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
Woolworths Ltd v Strong [2010] NSWCA 282
Category: Procedural and other rulings
Parties: Richard Craig Sutherland (Plaintiff
GHR Accounting (Defendant)
Representation:
Counsel:
Self represented (Plaintiff)
C Peadon (Defendant)
Solicitors:
Self represented (Plaintiff)
Colin Biggers & Paisley (Defendant)

File Number(s): 2015/236599
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 7 June 2017, the defendant seeks firstly, an order that the plaintiff’s further amended statement of claim (“FASC”) filed 5 May 2017 be dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); and secondly, in the alternative, that the proceedings be dismissed pursuant to UCPR r 13.4(1)(b).
The plaintiff is Richard Craig Sutherland. The defendant is GHR Accounting Group Pty Ltd. The plaintiff appeared without legal representation. The plaintiff seeks to join Quadratus as second plaintiff. Mr Peadon of counsel appeared for the defendant.

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: [2019] NSWSC 295
Decision Date: 25 March 2019

CaseChat Overview and Summary

In the matter of Sutherland v GHR Accounting Group Pty Ltd, the plaintiff, Mr Sutherland, sought to recover damages for losses allegedly incurred due to negligent advice provided by the defendant accounting firm, GHR Accounting Group Pty Ltd. The case was heard in the Supreme Court of New South Wales, where the primary focus was on the adequacy of the plaintiff’s statement of claim and the merits of the negligence claim.

The court had to determine whether the plaintiff's failure to prosecute the proceedings with due expedition warranted the summary dismissal of the claim. Additionally, the court examined whether the statement of claim disclosed a reasonable cause of action, specifically in terms of the defendant’s alleged negligent advice and failure to warn about an obvious risk. Another critical issue was whether the risk of loss was indeed obvious, which would negate the defendant’s duty to warn. Furthermore, the court needed to ascertain if the negligent advice provided by the defendant was the direct cause of the plaintiff’s losses.

The court found that the plaintiff's delay in prosecuting the proceedings did not justify summary dismissal, as there was no significant prejudice to the defendant. However, the court concluded that the statement of claim did not disclose a reasonable cause of action. The court held that the risk of loss in question was an obvious one, and therefore, the defendant did not owe a duty to warn the plaintiff. Moreover, even if such a duty existed, the court found that the plaintiff’s losses were not directly caused by the defendant's alleged negligent advice. Consequently, the court dismissed the plaintiff’s claim.

In light of the court's findings, the judge ordered that the plaintiff's claim be dismissed in its entirety, with no orders as to costs.

Orders