Wende v Horwath (NSW) Pty Ltd [2009] NSWSC 550

Wende v Horwath (NSW) Pty Ltd [2009] NSWSC 550

The court held that the contract for expert accounting services was between the plaintiffs and the defendant, not the plaintiffs' solicitor, based on the objective evidence including correspondence and conduct. The second engagement for a further report constituted a separate contract for which consideration was adequate. No undue pressure or duress was found in relation to the second engagement. There was no breach of fundamental contract terms regarding the database analyses or the methodology employed, and the defendant was not negligent. Witness immunity would in any event bar a negligence claim on the expert reports. The limitation on costs in the Practice Note did not apply because...

Jurisdiction
Australia
Judgment Date
22 June 2009
Procedural Posture
Appeal / Judgment on Appeal From Local Court to Supreme Court, Common Law Division
Outcome
Appeal dismissed
Legal Topics
['privity of Contract' 'presumption in Solicitor Engagements' 'jones V Dunkel Inference' 'negligence of Expert Witnesses' 'witness Immunity' 'costs Orders Under Practice Note']
['contract Law' 'civil Procedure' 'costs' 'evidence'] ['privity of Contract' 'presumption in Solicitor Engagements' 'jones V Dunkel Inference' 'negligence of Expert Witnesses' 'witness Immunity' 'costs Orders Under Practice Note']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Local Court to Supreme Court, Common Law Division

Legal Issues

  1. 1 ["Whether the contract for accounting services was between the plaintiffs and the defendant or between the plaintiffs' solicitor and the defendant" 'Whether there were two separate contracts for expert reports or only one' 'Whether the second contract was void, voidable or unenforceable due to alleged undue pressure/economic duress' "Whether the defendant breached any express term regarding the 'database' or calculation methodology" 'Whether the defendant was negligent in preparing its reports' 'Whether the costs order in the Local Court should have been limited pursuant to Practice Note']

Ratio Decidendi

The court held that the contract for expert accounting services was between the plaintiffs and the defendant, not the plaintiffs' solicitor, based on the objective evidence including correspondence and conduct. The second engagement for a further report constituted a separate contract for which consideration was adequate. No undue pressure or duress was found in relation to the second engagement. There was no breach of fundamental contract terms regarding the database analyses or the methodology employed, and the defendant was not negligent. Witness immunity would in any event bar a negligence claim on the expert reports. The limitation on costs in the Practice Note did not apply because...

Court Disposition

Appeal dismissed

Orders

  • ['The further amended summons is dismissed.' "The plaintiffs are to pay the defendant's costs."]