Court of Appeal
New South Wales
Case Title: Thompson & Anor t/as Staunton and Thompson Lawyers v Schacht Medium Neutral Citation: [2014] NSWCA 247 Hearing Date(s): 30 April 2014 Decision Date: 30 July 2014 Before: Basten JA at [1]; Barrett JA at [47]; Leeming JA at [126] Decision: Appeal to be allowed; order 1 made in the Common Law Division and entered on 21 May 2013 to be set aside; judgment for reduced damages to be awarded.
The parties are directed to confer with the purpose of resolving any outstanding issues and providing consent orders giving effect to the judgment of this Court within 21 days of delivery of these reasons. In the event that agreement is not achieved, whether in part or in whole, each party should file, no later than 35 days after delivery of these reasons, a document identifying his or their proposed orders and a short statement explaining the basis of any calculation and the reason for orders in that form.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: DAMAGES - measure and remoteness of damages in actions for tort - measure of damages - negligence - negligence by solicitors in preparing a financial agreement between spouses causing the agreement to be not binding - subsequent compromise of matrimonial litigation on terms less advantageous to one party than those provided for in the defective agreement - damages for negligence awarded to that party based on the difference between actual financial outcome and that which would have pertained had the agreement been binding - whether certain components wrongly included by primary judge Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E, 50
Family Law Act 1975 (Cth), Part VIIIA, ss 90, 90F, 90G, 90K, 90KACases Cited: Clark v Macourt [2013] HCA 56; 88 ALJR 190
Fink v Fink [1946] HCA 54; 74 CLR 127
Heenan v Di Sisto [2008] NSWCA 25
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Paino v Paino [2008] NSWCA 276; 40 Fam LR 96
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768
Schacht v Bruce Lockhart Thompson and Dennis Michael Staunton (trading as Staunton and Thompson Lawyers) (No 3) [2013] NSWSC 316
Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332Category: Principal judgment Parties: Bruce Lockhart Thompson and Dennis Michael Staunton t/as Staunton and Thompson Lawyers (Appellants)
Daniel Schacht (Respondent)Representation - Counsel: Counsel:
A P Cheshire (Appellants)
P S Braham SC/D A Lloyd (Respondent)- Solicitors:
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- AGLC
- Thompson and Anor t/as Staunton and Thompson Lawyers v Schacht [2014] NSWCA 247
- Case
- [2014] NSWCA 247
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were the correct measure of damages for the solicitors' negligence and, specifically, whether the primary judge had erred in including certain components in the calculation of those damages. This involved determining the appropriate benchmark against which the client's loss should be assessed, considering the compromised terms of the matrimonial litigation and the hypothetical benefit of a binding financial agreement.
The Court of Appeal reasoned that the damages should reflect the loss suffered by the client as a direct consequence of the solicitors' negligence. The legal principle applied was that damages in tort are intended to place the plaintiff in the position they would have been in had the tort not occurred. However, the Court found that the primary judge had incorrectly included certain components in the damages calculation. The Court allowed the appeal, set aside the original order, and ordered judgment for reduced damages. The parties were directed to confer to resolve outstanding issues and provide consent orders, with a process outlined for further submissions if agreement could not be reached.
Orders
Orders of the court
Appeal to be allowed; order 1 made in the Common Law Division and entered on 21 May 2013 to be set aside; judgment for reduced damages to be awarded.
The parties are directed to confer with the purpose of resolving any outstanding issues and providing consent orders giving effect to the judgment of this Court within 21 days of delivery of these reasons. In the event that agreement is not achieved, whether in part or in whole, each party should file, no later than 35 days after delivery of these reasons, a document identifying his or their proposed orders and a short statement explaining the basis of any calculation and the reason for orders in that form.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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