NOSS v HILTON [1997] NSWCA 230

NOSS v HILTON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, COLE JA and STEIN JA 11, 29 September 1997 [1997] NSWCA 230

SOLICITOR'S use of company funds without its authority — question of proximity giving rise to a duty of care — question of whether loss occurred. HELD — loss was suffered as a consequence of negligent acts.

Priestley JA. Having had the benefit of reading Cole JA's reasons in draft I wish to make only two observations. I agree with Cole JA as to the existence and breach of a relevant duty of care.

On the questions of the existence and extent of any damage suffered by the respondents the case presents some difficulties which, if treated in an abstract and very theoretical way, would lend some force to the appellants" submissions. However the various matters enumerated by Cole JA on this aspect of the case leave me comfortably satisfied that the parties at the trial before Giles J all recognised that the respondents had in fact lost their loan moneys to the amount of the cheque, and that this recognition accounts for the loss/damage question having been treated in the way it was.

I agree with Cole JA that the appeal should be dismissed with costs.

Cole JA. The appellants are solicitors who have appealed against a decision of Giles J delivered on 16 May 1995 in which his Honour held them liable in negligence to the respondents. On appeal there was no challenge to the findings of fact made by the trial judge, nor was the Court asked to make additional findings of fact. The appellants asserted that the trial judge had fallen into error in two respects, first, in holding that there was a relationship of proximity evoking a duty of care between the appellants and the respondents, and secondly, in holding that the respondents had suffered loss. It was contended that absent a supportable finding of loss the tort of negligence was not established. For these two reasons it was submitted there ought to have been a dismissal of the respondents" claim against the appellants in negligence.