Delaney & Ors. v. Short [2001] NSWCA 138

Delaney & Ors. v. Short [2001] NSWCA 138

The appeal succeeded because, although the trial judge correctly found that proper enquiries would have revealed the husband's Newport land and Ryde service station interest and that the respondent would then have obtained a more favourable Family Court settlement or result, the trial judge erred in bringing into account other sums merely because the husband had received and not accounted for them. The respondent bore the onus of proving that those sums remained assets or had been disposed of in circumstances justifying their treatment as property for s.79 purposes, and that onus was not discharged. Damages were reassessed globally at $220,000 with interest. The cross-appeal failed...

Jurisdiction
Australia
Judgment Date
14 May 2001
Procedural Posture
Appeal and Cross Appeal in a Professional Negligence Claim Against Solicitors Arising From Family Court Property Settlement Proceedings / Appeal From Judgment of Adams J in the Supreme Court Common Law Division
Outcome
Appeal allowed; original judgment set aside and substituted with judgment for the respondent for $220,000 plus $315,101 interest; cross-appeal dismissed.
Legal Topics
['solicitor Negligence' 'quantum of Damages' 'property Settlement' 'undisclosed Assets' 'onus of Proof' 'loss of Chance' 'interest on Damages' 'cross Appeal']
['professional Negligence' 'family Law' 'damages' 'civil Procedure'] ['solicitor Negligence' 'quantum of Damages' 'property Settlement' 'undisclosed Assets' 'onus of Proof' 'loss of Chance' 'interest on Damages' 'cross Appeal']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in a Professional Negligence Claim Against Solicitors Arising From Family Court Property Settlement Proceedings / Appeal From Judgment of Adams J in the Supreme Court Common Law Division

Legal Issues

  1. 1 ["Whether the trial judge erred in assessing damages for the solicitors' professional negligence at $420,000 plus interest." "Whether sums received by the respondent's husband but not accounted for could be treated as assets for the purposes of assessing the respondent's lost Family Court property settlement outcome." 'Whether the respondent bore and discharged the onus of proving that the husband had relevant assets, or had disposed of assets in circumstances justifying their treatment as property of the parties under s.79 of the Family Law Act.' 'Whether damages should be discounted further for contingencies and uncertainties affecting a negotiated settlement or contested Family Court hearing.' 'Whether interest should have been reduced because of delay in instituting or prosecuting the proceedings.' 'Whether the cross-appeal established negligence in relation to advice about compelling the sale of the Willoughby dental practice.']

Ratio Decidendi

The appeal succeeded because, although the trial judge correctly found that proper enquiries would have revealed the husband's Newport land and Ryde service station interest and that the respondent would then have obtained a more favourable Family Court settlement or result, the trial judge erred in bringing into account other sums merely because the husband had received and not accounted for them. The respondent bore the onus of proving that those sums remained assets or had been disposed of in circumstances justifying their treatment as property for s.79 purposes, and that onus was not discharged. Damages were reassessed globally at $220,000 with interest. The cross-appeal failed...

Court Disposition

Appeal allowed; original judgment set aside and substituted with judgment for the respondent for $220,000 plus $315,101 interest; cross-appeal dismissed.

Orders

  • ['Appeal allowed.' 'Judgment for the respondent for $979,233.46 set aside.' 'Judgment for the respondent against the appellants for $220,000.00 plus $315,101.00 interest.' 'Cross-appeal dismissed.' "Respondent to pay appellants' costs of the appeal and cross-appeal, and to have a certificate under the Suitors Fund...