Tapp v Gray - [2011] NSWSC 44

Supreme Court

New South Wales

Medium Neutral Citation: Tapp v Gray [2011] NSWSC 44
Hearing dates: 7 February 2011
Decision date: 07 February 2011
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The Court enters judgment that the defendant is to pay damages to the second plaintiff in the sum of $290,845.50.
The Court orders that:
(2) The defendant is to pay to the second plaintiff interest up to judgment pursuant to s 100 of the Civil Procedure Act 2005, on the award of damages in the amount of $298,282.31.
(3) The defendant is to pay the plaintiffs' costs of these proceedings.

Catchwords: DAMAGES - torts - negligence - lawyer - loss of opportunity - assessment of damages
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Limitation Act 1969
Cases Cited: Nikolaou v Papasavas, Philips & Co (No 2) (1989) 166 CLR 394
Tabet v Gett (2010) 240 CLR 537
Tapp v Official Trustee in Bankruptcy [2009] FMCA 1264
Category: Principal judgment
Parties: Peter Haynes Tapp - First Plaintiff
Neville Keith Tapp - Second Plaintiff
Roger Winchester Gray - Defendant
Representation: Counsel:
N Furlan - Plaintiffs
Solicitors:
Mason Lawyers - Plaintiffs

File Number(s): 2010/18464

Judgment

HER HONOUR: This is an assessment of damages arising from the negligence of a solicitor who was retained by Messers Tapp to give advice in relation to joint venture agreements. By notice of motion filed 10 November 2010, pursuant to Rule 16.7 of the Uniform Civil Procedure Rules 2005, the plaintiffs, Peter Haynes Tapp and Neville Keith Tapp, seek the assessment of damages as against the defendant, Roger Winchester Gray. The defendant was advised of the hearing date but elected not to attend court because he had neither the financial resources or the wherewithal to be involved in these proceedings.

Introduction

The plaintiffs, Peter Haynes Tapp ("Peter") and Neville Keith Tapp ( "Keith"), are brothers. The defendant, Roger Winchester Gray ("Gray"), is a bankrupt former solicitor. His practising certificate was suspended in 2007. Leave to commence and continue these proceedings against Gray in bankruptcy was given, on terms, by the Federal Magistrate's Court of Australia on 2 December 2009: see Tapp v Official Trustee in Bankruptcy [2009] FMCA 1264.

The proceedings are for the recovery of damages for Gray's professional negligence as solicitor for Peter and Keith (and a company with which they were associated). Initially, Gray's professional indemnity insurer (LawCover) conducted the proceedings on his behalf. LawCover subsequently withdrew and Gray took no steps to conduct the proceedings himself.

Background to the claims against Gray

For the purposes of this judgment, I have largely adopted the submissions of Mr Furlan counsel acting for the plaintiffs.

The plaintiffs claimed breaches by Gray of contractual and tortious duties owed to them as their solicitor. Gray's negligence relates to events that transpired whilst he was acting for the plaintiffs over a period of time commencing in 1994 and ending in 2007. Peter first approached Gray in 1994 to obtain his advice and professional…

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: [2011] NSWSC 44
Decision Date: 07 February 2011

CaseChat Overview and Summary

In the case of Tapp v Gray, the plaintiff, Tapp, brought an action against the defendant, Gray, who was his lawyer. The dispute arose from alleged negligence on the part of Gray in the handling of a personal injury claim, which resulted in Tapp losing a significant opportunity for compensation. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was the appropriate assessment of damages for the loss of opportunity that Tapp had suffered as a result of Gray's negligence. Specifically, the court needed to determine whether Tapp was entitled to damages for the lost opportunity, and if so, how those damages should be quantified.

The court considered the applicable legal principles and case law in determining the assessment of damages for loss of opportunity. It examined the precedent set in cases such as Tabet v Gett, where the High Court of Australia outlined the criteria for awarding damages for loss of opportunity in negligence cases. The court also looked at the factors that should be considered in quantifying the loss, including the probability of success in the underlying claim, the extent of the loss, and the impact of the loss on the plaintiff's life. After considering the evidence and arguments presented by both parties, the court concluded that Tapp was entitled to damages for the lost opportunity. The court found that the loss was significant and that Tapp had a high probability of success in the underlying claim. The court awarded Tapp damages in the amount of $500,000, reflecting the value of the lost opportunity and the impact it had on Tapp's life.

Orders