CURRIE & ANOR v LISTON & ANOR [1999] NSWCA 256

CURRIE & ANOR v LISTON & ANOR [1999] NSWCA 256

Leave to amend was refused because the proposed amendments raised a new ground of solicitor negligence not pleaded or argued before the Master, there was a real possibility the respondents would have conducted the case differently at trial, and the proposed new case did not cast doubt on the verdict or establish a causative connection between the alleged omitted advice and the appellants' loss. With nothing left in the appeal, the appeal was dismissed with costs. The Court declined to order indemnity costs.

Jurisdiction
Australia
Judgment Date
16 July 1999
Procedural Posture
Appeal / Application to Amend Notice of Appeal and Particulars of Negligence; Determination of Appeal
Outcome
Application to amend refused; appeal dismissed with costs; indemnity costs refused.
Legal Topics
['amendment of Grounds of Appeal' 'amendment of Pleadings on Appeal' 'solicitor Negligence' 'prejudice From New Case on Appeal' 'calderbank Letter and Indemnity Costs']
['civil Procedure' 'appellate Procedure' 'professional Negligence'] ['amendment of Grounds of Appeal' 'amendment of Pleadings on Appeal' 'solicitor Negligence' 'prejudice From New Case on Appeal' 'calderbank Letter and Indemnity Costs']

Case Brief

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Procedural Posture

Appeal / Application to Amend Notice of Appeal and Particulars of Negligence; Determination of Appeal

Legal Issues

  1. 1 ['Whether the appellants should be granted leave to amend the notice of appeal and particulars of negligence to raise a new case on appeal.' 'Whether the proposed new negligence case might have caused the respondents to conduct the trial differently.' 'Whether the proposed new case cast doubt on the verdict below.' 'Whether costs should be awarded on an indemnity basis because of a Calderbank letter.']

Ratio Decidendi

Leave to amend was refused because the proposed amendments raised a new ground of solicitor negligence not pleaded or argued before the Master, there was a real possibility the respondents would have conducted the case differently at trial, and the proposed new case did not cast doubt on the verdict or establish a causative connection between the alleged omitted advice and the appellants' loss. With nothing left in the appeal, the appeal was dismissed with costs. The Court declined to order indemnity costs.

Court Disposition

Application to amend refused; appeal dismissed with costs; indemnity costs refused.

Orders

  • ['Leave to amend the pleading and notice of appeal refused.' 'Appeal dismissed with costs.' 'No order for indemnity costs.']