Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey & the persons listed in Schedule A to the Notice of Appeal trading as Sparke Helmore [2023] NSWCA 23

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey & the persons listed in Schedule A to the Notice of Appeal trading as Sparke Helmore [2023] NSWCA 23 Hearing dates: 21 June 2022 Decision date: 22 February 2023 Before: Gleeson JA at [1]; Leeming JA at [3]; White JA at [8] Decision: (1) Appeal dismissed with costs. (2) Cross-appeal allowed with costs. (3) Set aside the orders of the court below of 26 November 2021 and 9 December 2021. (4) In lieu thereof, order that the proceedings be dismissed with costs. Catchwords: NEGLIGENCE – professional negligence – duty to advise – scope of solicitors' duty to advise property developer – where client suffers loss in the form of rescinded contracts for the sale of off-the-plan units upon failing to give timely notice of extension of time for completion – where client alleges that that loss was caused by solicitors' failure to advise of time within which client had the right to extend Registration Date and to seek instructions – where solicitors had previously advised officers of client of time limit within which right to extend contracts needed to be exercised – whether failure to reiterate or repeat advice closer to expiry of time limit constitutes breach of duty to advise – whether apparent that officers of client misunderstood previous advice –– held no breach of duty to advise by failure to reiterate advice previously imparted APPEALS – notice of contention – attempt to raise issue not agitated at first-instance – where appellant sought to establish respondents' liability in negligence on alternative basis from that contended at trial – whether alternative basis should be permitted – held impermissible for appellant to raise new ground of liability on appeal where respondents would be prejudiced – no issue of principle Cases Cited: Capebay Holdings Pty Ltd v Sands [2002] WASC 287 Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2001] FCA 1628; (2001) 188 ALR 566 Groom v Crocker [1939] 1 KB 194 Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374 Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a Firm) [1979] Ch 384 Nigam v Harm (No 2) [2011] WASCA 221 Scottsdale Homes Pty Ltd v Gemkip Pty Ltd [2008] QSC 326 Yager v Fishman & Co and Teff & Teff [1944] 1 All ER 552 Texts Cited: R J Jackson QC & J L Powell (General Editors), Jackson & Powell on Professional Negligence (3rd ed, 1992, Sweet & Maxwell) Category: Principal judgment Parties: Shoal Bay Beach Constructions No.1 Pty Ltd (Appellant/Cross Respondent) Mark Hickey and the persons listed in Schedule A to the Statement of Claim trading at all material times as Sparke Helmore Lawyers (Respondents/Cross Appellants) Representation: Counsel: D S Weinberger (Appellant/Cross Respondent) A R Zahra SC with J S Burnett (Respondents/Cross Appellants)