Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955

Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955

Gadens was negligent, breached its contract, and engaged in misleading conduct by providing unqualified advice that proceeds from redemption of preference shares would be 'tax free,' failing to warn of significant risks under Division 7A, s 45B, and Part IVA of the ITAA 1936, and by not recommending safer alternative structures. This advice caused quantifiable loss to Mr Symond, and Abbott Tout was a concurrent wrongdoer entitled to 15% apportionment. Actual damages, including tax liabilities, penalties, interest, professional fees, and loss of franking credits, are to be calculated based on further directions.

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Principal Judgment / Liability Judgment, Quantum Deferred for Further Calculation
Outcome
Plaintiff succeeds on negligence, breach of retainer and misleading conduct claims against the First Defendant. Damages to be calculated after further directions. Liability apportioned: Gadens 85%, Abbott Tout 15%.
Legal Topics
['professional Negligence' 'breach of Retainer' 'misleading or Deceptive Conduct' 'quantification of Damages' 'apportionment of Loss' 'concurrent Wrongdoers' 'causation' 'loss of Franking Credits' 'civil Liability']
['tort Law' 'contract Law' 'trade Practices' 'taxation Law'] ['professional Negligence' 'breach of Retainer' 'misleading or Deceptive Conduct' 'quantification of Damages' 'apportionment of Loss' 'concurrent Wrongdoers' 'causation' 'loss of Franking Credits' 'civil Liability']

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Procedural Posture

Principal Judgment / Liability Judgment, Quantum Deferred for Further Calculation

Legal Issues

  1. 1 ['Was Gadens negligent in providing specialised tax advice?' 'Did Gadens breach its retainer contract with Mr Symond?' 'Did Gadens engage in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth)?' 'Did negligent misstatements cause compensable loss?' 'What alternative structures should have been recommended to avoid tax liabilities?' "Was Abbott Tout a 'concurrent wrongdoer' for apportionment purposes?" "Was Gadens' advice deficient in failing to warn regarding Division 7A, s 45B, and Part IVA of the ITAA 1936?"]

Ratio Decidendi

Gadens was negligent, breached its contract, and engaged in misleading conduct by providing unqualified advice that proceeds from redemption of preference shares would be 'tax free,' failing to warn of significant risks under Division 7A, s 45B, and Part IVA of the ITAA 1936, and by not recommending safer alternative structures. This advice caused quantifiable loss to Mr Symond, and Abbott Tout was a concurrent wrongdoer entitled to 15% apportionment. Actual damages, including tax liabilities, penalties, interest, professional fees, and loss of franking credits, are to be calculated based on further directions.

Court Disposition

Plaintiff succeeds on negligence, breach of retainer and misleading conduct claims against the First Defendant. Damages to be calculated after further directions. Liability apportioned: Gadens 85%, Abbott Tout 15%.

Orders

  • ['Proceedings stood over for further directions (quantum calculation)' 'Liability of Gadens limited to 85% of recoverable damage after apportionment and deduction of $1.85 million Abbott Tout settlement' 'Order for parties to confer re: calculations, costs and final orders']