Kafataris v Joseph [2016] NSWSC 1556

Kafataris v Joseph [2016] NSWSC 1556

The plaintiffs failed to prove that the first defendant gave the alleged negligent advice about avoiding Capital Gains Tax by not claiming an aged pension. The Court accepted the first defendant's evidence that he did not give that advice and that the 2003 returns were lodged without Capital Gains Tax disclosure because the first plaintiff instructed that course. The plaintiffs' claimed loss was caused by their own decision to have false returns lodged, not by negligent advice or conduct of either defendant.

Jurisdiction
Australia
Judgment Date
11 October 2016
Procedural Posture
Torts Negligence Professional Negligence Claim for Damages / Principal Judgment After Final Hearing
Outcome
Judgment for the defendants.
Legal Topics
['breach of Duty' 'causation' 'reliance on Professional Advice' 'capital Gains Tax Disclosure' 'false Tax Returns' 'ato Penalties and General Interest Charge']
['torts' 'negligence' 'taxation' 'professional Liability'] ['breach of Duty' 'causation' 'reliance on Professional Advice' 'capital Gains Tax Disclosure' 'false Tax Returns' 'ato Penalties and General Interest Charge']

Case Brief

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Procedural Posture

Torts Negligence Professional Negligence Claim for Damages / Principal Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether the first defendant erroneously advised the plaintiffs that they need not disclose a Capital Gains Tax event or declare capital gain if they elected not to claim an aged pension.' 'Whether the plaintiffs relied on such advice when their 2003 tax returns were lodged without Capital Gains Tax disclosure.' 'Whether the first plaintiff instructed that the 2003 returns be lodged without Capital Gains Tax disclosure.' 'Whether any negligent advice or conduct by either defendant caused the claimed penalties, General Interest Charge, and legal and accounting costs.']

Ratio Decidendi

The plaintiffs failed to prove that the first defendant gave the alleged negligent advice about avoiding Capital Gains Tax by not claiming an aged pension. The Court accepted the first defendant's evidence that he did not give that advice and that the 2003 returns were lodged without Capital Gains Tax disclosure because the first plaintiff instructed that course. The plaintiffs' claimed loss was caused by their own decision to have false returns lodged, not by negligent advice or conduct of either defendant.

Court Disposition

Judgment for the defendants.

Orders

  • ['Judgment for the defendants.' "The plaintiffs are to pay the defendants' costs of the proceedings."]