Court of Appeal
New South Wales
Case Title: Vertzayias v King & Ors Medium Neutral Citation: [2011] NSWCA 215 Hearing Date(s): 16 May 2011 Decision Date: 29 July 2011 Jurisdiction: Before: Giles JA at [1], Macfarlan JA at [137], Whealy JA at [138]
Decision: (1) Direct that the name of the appellant in the notice of appeal and subsequent documents be amended to "Dion Vertzayias";
(2) Order that the appeal be dismissed with costs.
[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 - Solicitor's negligence - but for negligence client would not have entered into loan transactions as borrower - damages assessed at amount currently owed to lender - whether failed to recognise benefit to client of repayment from loan moneys of existing loan to third party guaranteed by client - comparison of client's position having entered into transactions with position if had not entered - finding that third party would have paid out the existing loan - client would not have been called on to pay as guarantor - client now liable for corresponding amount and called on to pay - damages currently included the corresponding amount and interest.
COSTS - Proceedings by lender against client settled - order made "no order as to costs" - loan remained on foot - whether order prevented lender from debiting costs of proceedings to loan account - did not prevent it.
PRACTICE AND PROCEDURE - Amendment - application after reasons published to amend to claim apportionment with concurrent wrongdoer - leave to amend refused - refusal correct - no question of principle.Legislation Cited: Australian Securities and Investment Commission Act 2001 (C'th)
Civil Liability Act 2002
Contracts Review Act 1980
Trade Practices Act 1974 (C'th)Cases Cited: re a Solicitor's Bill of Costs: re Shanahan (1941) 58 WN 132;
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175;
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300;
Coolibah Pastoral Co Pty Ltd v The Commonwealth (1967) 11 FLR 173;
Elders Trustees & Executor Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205;
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) (1993) Ch 171 at 192;
Re Hodgkinson, Hodgkinson v Hodgkinson (1895) 2 Ch 190;
J J Leonard Properties Pty Ltd v Leonard (WA) Pty Ltd (No 2) (1987) 13 ACLR 77;
Maher v Network Finance Ltd (1986) 4 NSWLR 694;
Mansfield v Robinson (1928) 2 KB 353;
Multiplex Constructions Pty Ltd v Irving [2005] NSWCA 1;
Oshlack v Richmond River Council (1998) 193 CLR 72;
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- AGLC
- Vertzayias v King [2011] NSWCA 215
- Case
- [2011] NSWCA 215
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the damages awarded to Mr Vertzayias had been correctly assessed, considering the potential benefit he would have received had the solicitor acted competently. This involved comparing Mr Vertzayias's actual position, having entered into the loan transactions, with his hypothetical position had he not done so. The court also considered whether a prior "no order as to costs" settlement in proceedings between Mr Vertzayias and the lender prevented the lender from debiting the costs of those proceedings to the loan account. Finally, the court addressed the correctness of the refusal to grant leave to amend the claim after the reasons for judgment had been published, to include a claim for apportionment with a concurrent wrongdoer.
The Court of Appeal reasoned that the damages should be assessed by comparing Mr Vertzayias's position with and without the solicitor's alleged negligence. It found that, had the solicitor acted appropriately, the third party would have repaid the existing loan, meaning Mr Vertzayias would not have been called upon to pay as guarantor. Consequently, Mr Vertzayias was now liable for that amount and interest, which had been correctly included in the damages awarded. Regarding the costs of the prior proceedings, the court held that the "no order as to costs" settlement did not preclude the lender from debiting those costs to the loan account. The refusal to grant leave to amend was also upheld, as it raised no question of principle.
The Court of Appeal ordered that the appellant's name be amended to "Dion Vertzayias" and dismissed the appeal with costs.
Orders
Orders of the court
(1) Direct that the name of the appellant in the notice of appeal and subsequent documents be amended to "Dion Vertzayias";
(2) Order that the appeal be dismissed with costs.
[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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