Symond v Gadens Lawyers Sydney Pty Ltd (No 2) [2013] NSWSC 1578

Symond v Gadens Lawyers Sydney Pty Ltd (No 2) [2013] NSWSC 1578

Gadens did not establish a basis to reopen the principal judgment's damages methodology on the main complaints about interest and earnings, tax payment timing, or professional fees. The use of Court rates for tax, penalties and professional costs paid by Mr Symond was justified because those were funds received into his hands and then lost, whereas the Benefit of the Restructure concerned a composite offsetting value involving funds retained by Holdings and appropriately valued by Holdings' earnings rate. The Benefit of the Restructure should accrue at Holdings' rate until 21 July 2012 and then at Court rates, and distributions to third party beneficiaries under Scenario 2 should be...

Jurisdiction
Australia
Judgment Date
31 October 2013
Procedural Posture
Consequential Orders Concerning Damages Quantification and Application to Reopen After Publication of Reasons for Judgment / After Principal Judgment Was Published But Before Final Substantive Orders Were Made; Notice of Motion Filed 2 August 2013 Heard on 17 October 2013
Outcome
Notice of motion dismissed; judgment entered for the Plaintiff against the First Defendant.
Legal Topics
['calculation of Economic Loss' 'pre Judgment Interest' 'offsetting Benefit of Restructure' 'reopening After Reasons for Judgment' 'tax Consequences of Business Restructure' 'third Party Beneficiaries' 'timing of Tax Payments' 'professional Fees']
['damages' 'civil Procedure' 'professional Negligence' 'contract' 'trade Practices'] ['calculation of Economic Loss' 'pre Judgment Interest' 'offsetting Benefit of Restructure' 'reopening After Reasons for Judgment' 'tax Consequences of Business Restructure' 'third Party Beneficiaries' 'timing of Tax Payments' 'professional Fees']

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Procedural Posture

Consequential Orders Concerning Damages Quantification and Application to Reopen After Publication of Reasons for Judgment / After Principal Judgment Was Published But Before Final Substantive Orders Were Made; Notice of Motion Filed 2 August 2013 Heard on 17 October 2013

Legal Issues

  1. 1 ['Whether Gadens should be permitted to reopen or modify the damages methodology stated in the principal judgment after reasons had been published but before final orders were made.' "Whether Court rates of interest should apply to tax, penalties and professional costs paid by Mr Symond while Holdings' earnings rate should apply to the timing component of the Benefit of the Restructure." 'What termination date and interest treatment should apply to the calculated Benefit of the Restructure.' 'Whether hypothetical distributions to third party beneficiaries should be treated as the same dollar amounts or the same proportions as in the actual distributions.' 'What dates should be used for hypothetical tax payments under Scenario 2.' 'Whether additional professional fees of $25,000.00 and $75,000.00 should be deducted as present day amounts or offset earlier with interest accrued on the net figure.']

Ratio Decidendi

Gadens did not establish a basis to reopen the principal judgment's damages methodology on the main complaints about interest and earnings, tax payment timing, or professional fees. The use of Court rates for tax, penalties and professional costs paid by Mr Symond was justified because those were funds received into his hands and then lost, whereas the Benefit of the Restructure concerned a composite offsetting value involving funds retained by Holdings and appropriately valued by Holdings' earnings rate. The Benefit of the Restructure should accrue at Holdings' rate until 21 July 2012 and then at Court rates, and distributions to third party beneficiaries under Scenario 2 should be...

Court Disposition

Notice of motion dismissed; judgment entered for the Plaintiff against the First Defendant.

Orders

  • ['The notice of motion filed 2 August 2013 is dismissed.' 'Judgment for the Plaintiff against the First Defendant in the sum of $4,979,800.00.']