BEGBIE v. MICHELL [2003] NSWCA 149

BEGBIE v. MICHELL [2003] NSWCA 149

The appeal failed because the trial judge's acceptance of the respondent's evidence that he was not instructed to draft a rent capitalisation clause was not displaced. In any event, even assuming such an instruction and breach, the unchallenged evidence showed Mr Stoker would not have entered into a lease containing a rent capitalisation clause, so the alleged negligence caused no recoverable loss. The asserted ambiguity or ineffectiveness of cl. 6.1(3)(d) did not causally relate to the Windeyer proceedings, and the losses claimed from the Hamilton proceedings were not shown to flow from the respondent's drafting. Leave to amend Ground 21 was refused because it raised factual issues not...

Jurisdiction
Australia
Judgment Date
13 June 2003
Procedural Posture
Appeal in a Solicitor Negligence Claim Concerning Drafting of a Lease Option Valuation Clause / Appeal From a District Court Decision of Patten DCJ Dismissing the Appellant's Claim; Application for Leave to Amend Ground 21 of the Appellant's Notice of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
["solicitor's Retainer" 'option to Purchase' 'valuation of Property' 'rent Capitalisation' 'existing Use Rights' 'causation' 'appellate Review of Findings of Fact' 'leave to Amend Notice of Appeal']
['professional Negligence' 'property Law' 'lease Law' 'civil Procedure'] ["solicitor's Retainer" 'option to Purchase' 'valuation of Property' 'rent Capitalisation' 'existing Use Rights' 'causation' 'appellate Review of Findings of Fact' 'leave to Amend Notice of Appeal']

Case Brief

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Procedural Posture

Appeal in a Solicitor Negligence Claim Concerning Drafting of a Lease Option Valuation Clause / Appeal From a District Court Decision of Patten DCJ Dismissing the Appellant's Claim; Application for Leave to Amend Ground 21 of the Appellant's Notice of Appeal

Legal Issues

  1. 1 ["Whether the respondent solicitor's retainer required him to draft a rent capitalisation clause for the valuation of the premises." "Whether the trial judge's acceptance of the respondent's evidence about his instructions could be displaced on appeal under the Abalos principle." 'Whether any assumed negligence in drafting the valuation clause caused loss to the appellant.' "Whether alleged ambiguity or ineffectiveness in cl. 6.1(3)(d) caused the appellant's costs and losses in the Windeyer and Hamilton proceedings." "Whether leave should be granted to amend Ground 21 of the Appellant's Notice of Appeal."]

Ratio Decidendi

The appeal failed because the trial judge's acceptance of the respondent's evidence that he was not instructed to draft a rent capitalisation clause was not displaced. In any event, even assuming such an instruction and breach, the unchallenged evidence showed Mr Stoker would not have entered into a lease containing a rent capitalisation clause, so the alleged negligence caused no recoverable loss. The asserted ambiguity or ineffectiveness of cl. 6.1(3)(d) did not causally relate to the Windeyer proceedings, and the losses claimed from the Hamilton proceedings were not shown to flow from the respondent's drafting. Leave to amend Ground 21 was refused because it raised factual issues not...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs;' "Leave to amend Ground 21 of Appellant's Notice of Appeal refused."]