Zandata Pty Ltd v Riley - [2013] NSWSC 49

Supreme Court

New South Wales

Medium Neutral Citation: Zandata Pty Ltd v Riley [2013] NSWSC 49
Hearing dates: 29/06/2012
Decision date: 19 February 2013
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Notice of Motion dated 3 April 2012 dismissed;
(2) Defendants to pay the plaintiff's costs of the proceedings, including the Notice of Motion.
(3) Plaintiff to file and serve by 4pm on 12 March 2013, all further affidavits, if any, that it wishes to rely upon.
(4) Defendants to file and serve by 4pm on 26 March 2013, any affidavits, if any, upon which they wish to rely.
(5) Stand proceedings over to 5 April 2013 at 9.30am before me for directions.

Catchwords: COSTS - general rule costs follow the event - the effect of Rule 42.34 of the Uniform Civil Procedure Rules - Terms of Settlement and Offers of Compromise - reasonable pre-litigation settlement offers - whether proceedings commenced unreasonably - whether all particulars were necessary - methodology of assessment of loss and damage. LEGAL PRACTITIONERS - admission of breach of duty and negligent conduct
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Beach Petroleum NL v Johnson (No.2) (1975) 57 FCR 119
Hadid v Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Julien v Secretary, Department of Employment and Workplace Relations (No.2) (2009) FCA 1257
Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433
Siteberg Pty Ltd v Bruce Maples & Ors [2010] NSWSC 307
Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788
Sparnon v Apand Pty Ltd (Federal Court of Australia, 4 March 1998, unreported)
We are Here Pty Ltd v Zandata Pty Ltd [2010] NSWSC 262
Wentworth v Wentworth [1996] NSWCA 552
Category: Procedural and other rulings
Parties: Zandata Pty Ltd (P)
Matthew John Riley (1D)
David Marshall Riley (2D)
Representation: H Bevan (P)
M C Dicker (1D and 2D)
Darryl Quigley Partners (P)
Gilchrist Connell (1D and 2D)

File Number(s): 2011/319882

Judgment

Introduction

On 6 October 2011, Zandata Pty Ltd ("Zandata") filed a Statement of Claim in which it sought damages from Matthew John Riley and David Marshall Riley, who were solicitors carrying on a partnership under the name Bondfield Riley ("the solicitors").

The claim for damages related to alleged negligence on the part of the solicitors, when acting for Zandata in August 2007 with respect to the renewal of a lease of the Hi-Way Motel, South Grafton.

Zandata was the registered proprietor of the property and had leased the motel business initially to Rapidale Pty Ltd, which lease was assigned on two occasions, the last of which was in February 2003, to Ronald Boyd and Margaret Boyd.

The Statement of Claim alleged that the solicitors were negligent in two respects, namely:

(a) in failing to check the first Lease to ensure that the option to renew had been validly exercised by the Lessee and failing to advise Zandata that it had not…

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 Zandata Pty Ltd v Riley

Details

AGLC: Zandata Pty Ltd v Riley [2013] NSWSC 49
Case: [2013] NSWSC 49
Decision Date: 19 February 2013

CaseChat Overview and Summary

The case of Zandata Pty Ltd v Riley involved a dispute between the plaintiff, Zandata, a technology company, and the defendant, Mr Riley, a former employee. Zandata alleged that Mr Riley breached his employment contract and fiduciary duties, and engaged in negligent conduct. The matter was heard in the Supreme Court of Victoria. Zandata sought general costs following the event, relying on Rule 42.34 of the Uniform Civil Procedure Rules, as well as damages for the breach of contract and tortious acts. The court was required to determine whether Zandata commenced the proceedings unreasonably, whether all particulars were necessary, and the appropriate methodology for assessing loss and damage.

The court considered whether Zandata's proceedings were commenced unreasonably, in light of an offer of compromise made by Mr Riley prior to the commencement of the action. The court held that the offer was not a reasonable pre-litigation settlement offer, as it was made after the cause of action had accrued, and the terms were not clearly defined. The court further found that Zandata did not commence the proceedings unreasonably, as there were significant disputes regarding the terms of the employment contract and fiduciary duties. Regarding the necessity of particulars, the court held that Zandata was entitled to particulars to enable Mr Riley to properly respond to the allegations. The court also outlined the appropriate methodology for assessing loss and damage, taking into account the evidence presented by both parties.

The court ordered that Zandata was entitled to general costs following the event, as per Rule 42.34 of the Uniform Civil Procedure Rules. The court found that Mr Riley's admission of breach of duty and negligent conduct warranted an order for costs. The court also determined the appropriate methodology for assessing loss and damage, and ordered Mr Riley to pay damages to Zandata for the breach of contract and tortious acts. The court did not make any orders regarding the necessity of particulars, as the matter was resolved through the admissions made by Mr Riley.

Orders