Wende, Wende and Lloyd trading as Berghofen Nurseries v Giles Finney trading as C.B.D. Law [2007] NSWLC 27

Local Court of New South Wales

CITATION: Wende, Wende and Lloyd trading as Berghofen Nurseries v Giles Finney trading as C.B.D. Law [2007] NSWLC 27 JURISDICTION: Civil PARTIES: Herbert Wende, Margaret Wende and Mark Lloyd trading as Berghofen Nurseries Giles Finney trading as C.B.D. Law FILE NUMBER: 4445/07 PLACE OF HEARING: Downing Centre DATE OF DECISION: 08/10/2007 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Settlement of litigation by "Heads of Agreement" - whether definite, concludable and enforceable agreement LEGISLATION CITED: Uniform Civil Procedure Act Toll v Alphapharm (2004) 219 CLR 165 Masters v Cameron (1954) 91 CLR 353 CASES CITED: Owners Corporation Strata Plan 62285 & Ors. v Betona Corporation (NSW) Pty Ltd & Ors. (2006) NSWSC 216 Thompson v Macedon Ranges Shire Council (1999) VSC 338 Carr v J.A. Berriman Pty Ltd (1953) 89 CLR 327 Mr H. Wende and Mr M. Lloyd in person REPRESENTATION: Solicitors for Defendant: C.B.D. Law Counsel for Defendant: Ms Hill ORDERS: Judgment for the plaintiff in the sum of $5,000. The defendant is to pay interest on the judgment debt from 20 April 2007.

Reasons for Decision

1 The plaintiffs sued the defendant, a solicitor, alleging negligence in the conduct of a District Court matter and originally sought to recover $3,200. That claim was heard in the Small Claims Division of the Local Court at Gosford. The learned Magistrate found in favour of the defendant. The plaintiff appealed to the Supreme Court. An Assistant Registrar of the Supreme Court dismissed the appeal. The plaintiffs lodged a further appeal which was heard by His Honour Judge Howie on 16 September 2005 in proceedings Herbert Wende and Ors. V Giles Finney (2005) NSW SC 927. The appeal was allowed and the proceedings were sent back to the Local Court at Gosford for re-hearing. 2 On 31 July 2006 the plaintiffs filed an Amended Statement of Claim seeking an amount of $60,000. It would appear that the only alteration to the pleading was that in relation to the particulars of damage, additions were made to the particulars so that the particulars in the Amended Statement of Claim provide as follows: ' Costs as per 3. above $3,200.00 Expenses $25,361.00 Loss to District Court case per Mr Finney $611,000.00 Part of Undecided Total $60,000.00'