Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67 Hearing dates: 12 February 2024 Date of orders: 04 April 2024 Decision date: 04 April 2024 Before: Bell CJ at [1]; Gleeson JA at [4]; Harrison JA at [5] Decision: (1) Allow the appeal. (2) Set aside orders 1 and 2 made on 11 August 2023 and, in lieu thereof, dismiss the Amended Statement of Claim with costs. (3) Dismiss the cross-appeal. (4) Order the respondent/cross-appellant to pay the appellant/cross-respondent's costs of the appeal and of the cross-appeal. Catchwords: APPEALS – from finding of fact – credibility of witness – where credibility informed assessment of competing contemporaneous documentary, affidavit, and oral evidence at trial – where credibility fell to be assessed having regard to evidentiary inconsistences in an individual's affidavit and oral evidence at trial in determining what he would have done in two counterfactual circumstances – where primary judge enjoyed the benefit of observing the trial in forming an assessment of credibility NEGLIGENCE – where law firm breached duty of care to advise client against lodgement of a caveat – damages – loss of chance to exercise right of recission under a call option deed – whether the lost opportunity had some non-negligible value within the principles in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 – where relevant parties had a willingness to pay – where there was insufficient evidence for an inference that the relevant parties had an ability to pay Legislation Cited: Land Tax Management Act 1956 (NSW), s 47(1) Cases Cited: Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Miles v Luneburger Franchising Pty Ltd [2021] NSWCA 248 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Category: Principal judgment Parties: Dennis Bluth & the 274 others named in Schedule 1 trading as HWL Ebsworth Lawyers (Appellants) Boyded Industries Pty Limited (Respondent) Representation: Counsel: T M Faulkner SC with G Marsden (Appellants) J Giles SC with E Ball (Respondent)