Heenan v Di Sisto & Ors [2008] NSWCA 25

New South Wales Court of Appeal

CITATION: Heenan v Di Sisto & Ors [2008] NSWCA 25

HEARING DATE(S): 8 February 2008

JUDGMENT DATE: 11 March 2008

JUDGMENT OF: Mason P at 1; Giles JA at 2; Mathews AJA at 62

DECISION: (1) Appeal allowed in part and cross-appeal allowed; (2) Set aside the order that the fourth defendant pay damages to the plaintiff in the sum of $505,898.00, and in lieu thereof order that the fourth defendant pay damages to the plaintiffs in the amount calculated by the parties and advised to the Registrar in accordance with order 3; (3) Direct the parties to calculate the damages payable in accordance with these reasons and advise the Registrar of the amount within 10 days from this date; (4) Liberty to apply within 21 days from this date in the event that the parties are unable to agree upon the calculation of damages in accordance with order 3, application to be made in the first instance by letter to the Associate to Giles JA; (5) Respondents pay 75 per cent of the appellant's costs of the appeal, and to have a certificate under the Suitors Fund Act if otherwise entitled thereto.

CATCHWORDS: Damages - solicitor's negligence - sale of adjacent properties - failure to advise to make contracts interdependent - purchaser sought to complete on one only - eventually did not complete on either - loss on re-sale - whether loss caused by negligence - assessment of loss according to the possibilities or probabilities - contract price as correct starting-point for assessment of loss on re-sale - discretionary interest.

CATEGORY: Principal judgment

Allied Maples Group Ltd v Simmons & Simmons (1995) 1 WLR 1602; Bradshaw v McEwens Pty Ltd (HC, 27 April 1951, unreported); Daniels v Anderson (1995) 37 NSWLR 438; Di Sisto v Skyworld Pty Ltd [2005] NSWSC 723; Gove v Montague Mining Pty Ltd [2000] FCA 1214; Hall v Foong (1995) 65 SASR 281; Hanflex Pty Ltd v NS Hope & Associates (1990) 2 Qd R 218; CASES CITED: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640; Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Sussman v Symes (McLelland CJ in Eq, 4 July 1994, unreported); Sykes v Midland Bank Executor & Trustee Co Ltd (1971) 1 QB 113; WCW Pty Ltd v Bolster (Full Federal Court, 6 January 1993, unreported); Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485;