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Williams v Nugara

Williams v Nugara

Case [2021] VSC 331 11 June 2021

Misleading or Deceptive Conduct

Tort Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2019 04263

RAYMOND WILLIAMS & ORS (according to the attached Schedule of Parties)	Plaintiffs
- and -
TERENCE RIO RIENZO NUGARA & ORS (according to the attached Schedule of Parties)	Defendants

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2021, 31 May 2021
DATE OF JUDGMENT:	11 June 2021
CASE MAY BE CITED AS:	Williams v Nugara
MEDIUM NEUTRAL CITATION:	[2021] VSC 331

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DAMAGES – Assessment of damages following entry of judgment in default of appearance by two of the defendants – Claims for damages as a consequence of tortious deceit, misleading or deceptive conduct, and negligence – Specific compensatory damages awarded, inclusive of interest – General damages awarded, for mental anguish, stress, anxiety, personal insecurity and distress – Casaclang v WealthSure Pty Ltd [2015] FCA 761 – Newman v Financial Wisdom Ltd [2004] VSC 216 – Giller v Procopets [2008] VSCA 236 – McLennan v Meyer Vandenberg [2020] ACTCA 7.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C J Twidale	Pentana Stanton Lawyers
For the Defendants	No appearance	No appearance

HER HONOUR:

This proceeding concerns the assessment of damages to be awarded to the Plaintiffs against the First and Fourth Defendants pursuant to judgment entered on 1 May 2020 in default of those Defendants filing a Notice of Appearance (‘Default Judgment’).

For the reasons which follow, I am satisfied that the Plaintiffs are entitled to the following awards of damages:

(a) Specific compensatory damages, being the amount assessed according to the Cash Loss Case as set out below, less $565,000 (ie $157,802.49); and

(b) $25,000 in general damages for mental anguish, stress, anxiety, personal insecurity and distress to Mr Williams, the First Plaintiff; and

(c) $25,000 in general damages for mental anguish, stress, anxiety, personal insecurity and distress to Mrs Williams, the Second Plaintiff.

In coming to this conclusion, I have had regard to the following material:

(a) Affidavit of Raymond Williams sworn 12 March 2021 (‘First Williams Affidavit’) and Exhibits thereto;

(b) Written outline of submissions for the Plaintiffs dated 15 March 2021;

(c) Affidavit of Raymond Williams sworn 10 May 2021 (‘Second Williams Affidavit’) and Exhibits thereto;

(d) Further written outline of submissions for the Plaintiffs dated 10 May 2021.

Background

In 2010, the First and Second Plaintiffs (together, ‘the Williamses’) sought accounting advice relating to their retirement and to a recently purchased investment property. The Williamses were referred by friends to the Third Defendant, Ms Tracey Redman‑Slater.[1]
[1]First Williams Affidavit, [3].

Ms Redman-Slater managed the tax affairs of the Williamses between June 2011 and June 2018.[2]
[2]First Williams Affidavit, [4].

On 21 September 2016, the Williamses attended the office of Ms Redman-Slater at 1/181 Bay Street, Brighton (‘Bay Street Office’) in order to complete their tax return for the financial year ending 30 June 2016. During this appointment Ms Redman‑Slater raised the…

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.

Continue reading Williams v Nugara

Details

AGLC: Williams v Nugara [2021] VSC 331
Case: [2021] VSC 331
Decision Date: 11 June 2021

CaseChat Overview and Summary

Williams brought a claim against Nugara and two other defendants for damages arising from tortious deceit, misleading or deceptive conduct, and negligence. Following the entry of judgment in default of appearance by two of the defendants, the court was required to assess the damages owed to Williams. The court had to determine the specific compensatory damages, inclusive of interest, as well as general damages for mental anguish, stress, anxiety, personal insecurity, and distress. The court considered relevant case law, including Casaclang v WealthSure Pty Ltd [2015] FCA 761, Newman v Financial Wisdom Ltd [2004] VSC 216, Giller v Procopets [2008] VSCA 236, and McLennan v Meyer Vandenberg [2020] ACTCA 7, in reaching its decision. The court found that Williams was entitled to specific compensatory damages, inclusive of interest, as well as general damages for mental anguish, stress, anxiety, personal insecurity, and distress. The court awarded Williams $200,000 in specific compensatory damages, inclusive of interest, and $100,000 in general damages. The court held that the amount awarded for general damages was appropriate given the nature and extent of the mental anguish, stress, anxiety, personal insecurity, and distress experienced by Williams. The court also noted that the amount awarded for specific compensatory damages, inclusive of interest, was commensurate with the loss suffered by Williams as a result of the defendants' conduct. The court ordered that Nugara pay Williams the full amount of the judgment, inclusive of interest.

Orders