HENDRIKS v McGEOCH [2008] NSWCA 53

HENDRIKS v McGEOCH [2008] NSWCA 53

The solicitors owed Jon McGeoch a duty of care, despite the absence of a retainer, because protecting his interests was consistent with their instructions and was reasonably foreseeable to give rise to loss if performed negligently. They breached that duty by failing to secure an enforceable agreement to protect his expectation of receiving the Mollymook property, thus resulting in loss of a chance, which was assessed at 80%. Damages should reflect that probability and the previous quantum must be set aside for reassessment. Costs to follow, with 50% appeal costs to respondent; exclusion of costs for abandoned issues upheld.

Parties
First Appellant: Henri Hendriks; Second Appellant: Robert George Stone; Third Appellant: Ian Erratt; Fourth Appellant: Frederick John Commins; Fifth Appellant: Glen Francis Lollback; Sixth Appellant: Geoffrey John Potter; Seventh Appellant: William James Thompson; Eighth Appellant: Peter James Webb; Respondent: Jon McLaurin McGeoch
Jurisdiction
Australia
Judgment Date
02 April 2008
Procedural Posture
Appeal / Decision on Appeal From Equity Division of Supreme Court of NSW
Outcome
Appeal allowed in part. Judgment below for $422,834 set aside; damages to be set by agreement and notified to Registrar; appellants to pay 50% of respondent's costs of appeal; cross-appeal dismissed with costs.
Legal Topics
Retainer Solicitors, Duty of Care Solicitors to Third Parties, Damages Loss of Chance, Costs Abandonment of Issues, Negligence, Misleading or Deceptive Conduct
Contract Law Tort Law Equity Civil Procedure Retainer Solicitors Duty of Care Solicitors to Third Parties Damages Loss of Chance Costs Abandonment of Issues +2 more

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Parties

Henri Hendriks

First Appellant

Robert George Stone

Second Appellant

Ian Erratt

Third Appellant

Frederick John Commins

Fourth Appellant

Glen Francis Lollback

Fifth Appellant

Geoffrey John Potter

Sixth Appellant

William James Thompson

Seventh Appellant

Peter James Webb

Eighth Appellant

Jon McLaurin McGeoch

Respondent

Procedural Posture

Appeal / Decision on Appeal From Equity Division of Supreme Court of NSW

Legal Issues

  1. 1 Whether there was a contract of retainer between the solicitors and the respondent
  2. 2 Whether the solicitors owed the respondent a duty of care
  3. 3 Whether the duty of care was breached

Ratio Decidendi

The solicitors owed Jon McGeoch a duty of care, despite the absence of a retainer, because protecting his interests was consistent with their instructions and was reasonably foreseeable to give rise to loss if performed negligently. They breached that duty by failing to secure an enforceable agreement to protect his expectation of receiving the Mollymook property, thus resulting in loss of a chance, which was assessed at 80%. Damages should reflect that probability and the previous quantum must be set aside for reassessment. Costs to follow, with 50% appeal costs to respondent; exclusion of costs for abandoned issues upheld.

Court Disposition

Appeal allowed in part. Judgment below for $422,834 set aside; damages to be set by agreement and notified to Registrar; appellants to pay 50% of respondent's costs of appeal; cross-appeal dismissed with costs.

Orders

  • Set aside the judgment for the plaintiff against the defendants for $422,834, and in lieu thereof judgment for the plaintiff against the defendants for such sum as shall be advised to the Registrar in accordance with order 3 taking effect on 13 April 2007.
  • Direct the parties to confer with a view to agreement on the plaintiff's damages computed in accordance with these reasons and to advise the Registrar within seven days hereafter of the amount of the judgment for the plaintiff against the defendants.