Monica Frances Symonds and Gerald Symonds v Cedric Borsmann Vass and 24 Ors [2007] NSWSC 1436

New South Wales Supreme Court

CITATION : Monica Frances Symonds and Gerald Symonds v Cedric Borsmann Vass and 24 Ors [2007] NSWSC 1436

HEARING DATE(S) : 4/12 07

JUDGMENT DATE : 12 December 2007

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 21

LEGISLATION CITED : Uniform Civil Procedure Rules Civil Procedure Act 2005

Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No2) (2006) 67 NSWLR 706; CASES CITED : Ambulance Service of NSW v Worsley (No2) (2006) 67 NSWLR 719; Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339

PARTIES : Monica Frances Symonds and Gerald Symonds - Plaintiffs Cedric Borsmann Vass and 24 Ors - Defendants

FILE NUMBER(S) : SC 20994 of 2001

COUNSEL : Mr V Gray - Plaintiffs Mr T Faulkner - Defendants

SOLICITORS : George Mallos - Plaintiffs Mallesons Stephen Jacques - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

14 November 2007

No: 20994 of 01

Monica Frances Symonds – First Plaintiff Gerald Symonds – Second Plaintiff v Cedric Borsmann Vass – First Defendant and 24 Orss

JUDGMENT INTRODUCTION: 1 The Plaintiffs sue their former solicitors in somewhat unusual circumstances. 2 Early in 1991 they contracted to purchase for $13m a waterfront property known as Paradis Sur Mer (hereafter "the Property"), 7 Wolseley Crescent, Point Piper, intending to subdivide and/or redevelop it. They claim that in doing so they relied on the advice and valuation of a valuer, Mr Frank Egan. 3 However, their scheme proved financially disastrous and, as seems to be common ground, the venture resulted in the loss of many millions of dollars. 4 Seeking to blame Mr Egan for the loss, they brought proceedings against him and a company, Egan National Valuers (NSW) Pty Ltd of which he was Managing Director (together hereafter "Egan"), in this court (the earlier proceedings) retaining for the purpose, the present defendants, at relevant times practising in partnership under the name Dunhill Madden Butler (I will hereafter refer to the Defendants as "Dunhill Madden") 5 The earlier proceedings were listed for hearing by Dowd J, commencing 29 January 1996 with an estimate of 5 weeks. During that hearing there were pleading and procedural difficulties and interlocutory applications, including an excursion to the Court of Appeal, which occupied most of the allotted time. In the result, following advice from their senior and junior counsel and from Dunhill Madden, represented by Mr Stephen Klotz, the Plaintiffs agreed to a compromise on the basis that the earlier proceedings were dismissed with no order as to costs. 6 The Plaintiffs believing that Dunhill Madden breached the terms of their retainer and were negligent in and about the prosecution of the earlier proceedings and in and about the compromise of them, commenced these proceedings, primarily seeking, in effect, damages for the loss of the chance of a successful outcome. 7 They also pleaded as a separate cause of action an entitlement to repayment of certain of the monies paid by them on account of costs. 8 Before me, the Plaintiffs were represented by Mr V Gray of counsel. Mr R Weber SC with Mr T Faulkner represented Dunhill Madden. With one significant exception, for the most part, all the witnesses who could have given evidence in the earlier proceedings gave evidence before me, the exception being Mr Egan who had died in the meantime. However, a statement he made for the purposes of the earlier proceedings was admitted into evidence as exhibit 47.