Tapp v Gray [2011] NSWSC 44

Tapp v Gray [2011] NSWSC 44

Because Gray's negligence caused the brothers to lose the opportunity to pursue viable proceedings against Harrison for breach of the joint venture agreement, the proper measure of loss was the damages that would likely have been recovered in those proceedings. On the evidence, Keith would have recovered his capital contribution and interest losses, so damages were assessed in his favour at $290,845.50, with interest under s 100 of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
07 February 2011
Procedural Posture
Professional Negligence Claim Against Solicitor for Damages / Assessment of Damages After Default Judgment
Outcome
Judgment entered for the second plaintiff against the defendant for damages, interest and costs.
Legal Topics
['solicitor Negligence' 'loss of Opportunity' 'assessment of Damages' 'joint Venture Agreement' 'limitation of Actions']
['torts' 'professional Negligence' 'damages'] ['solicitor Negligence' 'loss of Opportunity' 'assessment of Damages' 'joint Venture Agreement' 'limitation of Actions']

Case Brief

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Procedural Posture

Professional Negligence Claim Against Solicitor for Damages / Assessment of Damages After Default Judgment

Legal Issues

  1. 1 ["Whether damages should be assessed against the defendant solicitor for negligently failing to protect and preserve the plaintiffs' rights arising from the unauthorised sale of the Toukley property." 'What amount of damages would put the second plaintiff in the position he would have been in had the solicitor not been negligent.' 'Whether interest up to judgment should be awarded pursuant to s 100 of the Civil Procedure Act 2005.']

Ratio Decidendi

Because Gray's negligence caused the brothers to lose the opportunity to pursue viable proceedings against Harrison for breach of the joint venture agreement, the proper measure of loss was the damages that would likely have been recovered in those proceedings. On the evidence, Keith would have recovered his capital contribution and interest losses, so damages were assessed in his favour at $290,845.50, with interest under s 100 of the Civil Procedure Act 2005.

Court Disposition

Judgment entered for the second plaintiff against the defendant for damages, interest and costs.

Orders

  • ['The Court enters judgment that the defendant is to pay damages to the second plaintiff in the sum of $290,845.50.' 'The defendant is to pay to the second plaintiff interest up to judgment pursuant to s 100 of the Civil Procedure Act 2005, on the award of damages in the amount of $298,282.31.' "The defendant is to...