Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 5) [2021] NSWSC 1499

Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 5) [2021] NSWSC 1499

The defendants were negligent and in breach of their retainer by failing to alert the developer to the deadline for service of extension notices for Lots 50 and 52, leading to valid rescission by the purchasers and financial loss. The developer’s contributory negligence was assessed at 30% due to its failure to take...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Negligence and Breach of Contract (solicitor's Negligence, Legal Retainer) / Principal Judgment After Final Hearing
Outcome
Judgment for the plaintiff against the defendants, with damages to be calculated and costs awarded subject to further application.
Legal Topics
['breach of Contract by Legal Practitioners' 'solicitor’s Duty of Care' 'contributory Negligence' 'damages for Economic Loss' 'proportionate Liability' 'rescission of Contracts' 'extension of Time Notices in Property Contracts']
['contracts' 'negligence' 'professional Liability'] ['breach of Contract by Legal Practitioners' 'solicitor’s Duty of Care' 'contributory Negligence' 'damages for Economic Loss' 'proportionate Liability' 'rescission of Contracts' 'extension of Time Notices in Property Contracts']

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Procedural Posture

Negligence and Breach of Contract (solicitor's Negligence, Legal Retainer) / Principal Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether the defendants breached their duty of care and contractual retainer to the developer in failing to alert it to deadlines for extension notices.' 'Whether the defendants were negligent in advising or handling the rescission claims and Equity proceedings.' 'Whether the developer contributed to its harm by failing to monitor contractual deadlines or take precautions.' 'What damages are recoverable as a result of the breaches or negligence.']

Ratio Decidendi

The defendants were negligent and in breach of their retainer by failing to alert the developer to the deadline for service of extension notices for Lots 50 and 52, leading to valid rescission by the purchasers and financial loss. The developer’s contributory negligence was assessed at 30% due to its failure to take reasonable precautions against risk, but ultimate monitoring responsibility lay with the solicitors due to contractual complexity. Damages awarded for the value differential in the resale of the Lots, but not for consequential loss or commercial interest.

Court Disposition

Judgment for the plaintiff against the defendants, with damages to be calculated and costs awarded subject to further application.

Orders

  • ['Judgment for the plaintiff against the defendants.' 'Parties to provide agreed calculations of the judgment sum within seven days.' "Defendants to pay the plaintiff's costs of the proceedings, subject to any application for a different costs order within seven days."]