YORK and ANOR v MAZEY and ORS t/as PHOTIOS SLATER and CO [1997] NSWCA 358

YORK and ANOR v MAZEY and ORS t/as PHOTIOS SLATER and CO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE and BEAZLEY JJA 5, 6 February 1997, 13 February 1997

[1997] NSWCA 358

NEGLIGENCE of solicitor — finding of trial judge not disturbed.

Sheller JA I agree with Cole JA.

Cole JA The appellants Sam York and Geoffrey Harry Houseman, sued their solicitors Photios Slater & Co in negligence, for breach of contract and in deceit. Cooper DCJ rejected the claim in deceit but held the claim in negligence established and awarded damages for economic loss suffered in consequence in the sum of $9,697.76 which, after addition of interest, resulted in a verdict of the appellants in the sum of $14,325.34. Having found negligent breach of duty his Honour did not in terms address the claim in contract.

The appellants have not challenged on appeal the rejection of the claim in deceit. Nor do they contend that the trial judge erred in his statement of the duty owed by the solicitors to the appellants. The short point taken on appeal is that his Honour erred in holding that the negligence of the solicitors was responsible for delaying settlement of a purchase transaction for one week only rather than for the period between 31 January 1989 and 21 February 1989. As the appellant's interest costs were related to the lending bank's cost of finance at the date of settlement, and as interest rates trended upward during this period, the appellants seek the total additional interest paid by them on funds borrowed to finance the purchase beyond those which would have been payable had the matter been settled on 31 January 1989. The claim originally made that the transaction should have settled prior to 31 January 1989 was abandoned at the hearing and accordingly was not available on appeal.

Additionally, the appellants challenge the trial judge's exercise of discretion regarding costs. As the claim in deceit was unsuccessful and, in the view of the trial judge was unsupported by evidence and thus should have not have been brought, Cooper DCJ in exercise of discretion deprived the successful plaintiffs of their costs by offsetting the costs relating to the deceit issue upon which they failed against the costs to which otherwise they would have been entitled in respect of the negligence claim on which they succeeded.