Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915

Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915

The solicitor breached its duty by failing to advise the plaintiff that lodging the caveat would entitle the Gateway entities to terminate the deed. If properly advised, Mr Turner would not have instructed that a caveat be lodged and the deed would not have been terminated. On the counterfactual, the plaintiff would most likely have rescinded the deed in May 2020 rather than negotiated an extension, because Mr Turner's preference for the showroom was not fixed and his concerns about the Gateway entities' financial position made rescission commercially likely. The plaintiff lost a commercial opportunity of more than negligible value to obtain payment of the $3.5 million rescission amount...

Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Professional Negligence and Breach of Contract Claim in the Common Law Jurisdiction / Principal Judgment Following Hearing; Breach of Duty Admitted and Causation, Damages, Contributory Negligence and Proportionate Liability Issues Determined, With Final Orders to Be Settled
Outcome
The Court found that the plaintiff suffered a compensable lost commercial opportunity valued at $2 million, rejected the GST reduction and contributory negligence/proportionate liability defences, and directed the parties to bring in proposed final orders including interest and costs.
Legal Topics
["solicitor's Duty to Advise" 'lodgement of Caveat' 'call Option Deed' 'causation' 'counterfactual Analysis' 'loss of Commercial Opportunity' 'assessment of Damages' 'gst' 'contributory Negligence' 'proportionate Liability']
['negligence' 'professional Negligence' 'contract' 'damages' 'civil Procedure'] ["solicitor's Duty to Advise" 'lodgement of Caveat' 'call Option Deed' 'causation' 'counterfactual Analysis' 'loss of Commercial Opportunity' 'assessment of Damages' 'gst' 'contributory Negligence' 'proportionate Liability']

Case Brief

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Procedural Posture

Professional Negligence and Breach of Contract Claim in the Common Law Jurisdiction / Principal Judgment Following Hearing; Breach of Duty Admitted and Causation, Damages, Contributory Negligence and Proportionate Liability Issues Determined, With Final Orders to Be Settled

Legal Issues

  1. 1 ["Whether the defendant's admitted failure to advise that lodging a caveat would entitle the Gateway entities to terminate the Deed of Call Option caused loss to the plaintiff." "Whether, but for the defendant's negligence, the plaintiff would have rescinded the deed in May 2020 or instead negotiated an extension of the call option period." 'Whether the plaintiff lost something of value, namely an opportunity to obtain payment of $3.5 million under the deed or guarantee.' 'How the lost commercial opportunity should be valued having regard to the willingness and ability of the Gateway entities or Mr Fayad to pay.' "Whether the plaintiff's damages should be reduced for GST." "Whether any reduction should be made for contributory negligence or proportionate liability based on Mr Turner's failure to recall the caveat prohibition."]

Ratio Decidendi

The solicitor breached its duty by failing to advise the plaintiff that lodging the caveat would entitle the Gateway entities to terminate the deed. If properly advised, Mr Turner would not have instructed that a caveat be lodged and the deed would not have been terminated. On the counterfactual, the plaintiff would most likely have rescinded the deed in May 2020 rather than negotiated an extension, because Mr Turner's preference for the showroom was not fixed and his concerns about the Gateway entities' financial position made rescission commercially likely. The plaintiff lost a commercial opportunity of more than negligible value to obtain payment of the $3.5 million rescission amount...

Court Disposition

The Court found that the plaintiff suffered a compensable lost commercial opportunity valued at $2 million, rejected the GST reduction and contributory negligence/proportionate liability defences, and directed the parties to bring in proposed final orders including interest and costs.

Orders

  • ['Direct that the parties confer with a view to agreeing upon proposed orders finalising the proceedings in accordance with these reasons (including interest and costs), with agreed orders to be filed and served by 9 August 2023, 5pm.' 'To the extent that agreement cannot be reached, direct that each party is to...