Edmund James Bateman v Face Accountants Pty Limited [2010] NSWSC 1355

New South Wales Supreme Court

CITATION : Edmund James Bateman v Face Accountants Pty Limited [2010] NSWSC 1355 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 8, 9, 10, 15 & 16 November 2010

JUDGMENT DATE : 1 December 2010

JUDGMENT OF : Hammerschlag J

DECISION : Plaintiff's claim dismissed

CATCHWORDS : DAMAGES – NEGLIGENCE – misleading or deceptive conduct – Trade Practices Act 1974 (Cth) – Fair Trading Act 1987 (NSW) – causation – whether by the defendants' conduct the plaintiff suffered loss or damage – the plaintiff sought specialist tax advice from the defendants concerning the exercise by him of options to acquire shares in a public company for which he worked – they did not advise him that upon exercise he would incur a significant tax liability – when the liability became known to him he believed he could not sell the shares because he held confidential information about the company – defendants accepted liability for such loss and damage as was caused by their conduct – plaintiff promoted two alternative scenarios as to what he would have done in place of what he in fact did – whether loss should be assessed on the basis that the plaintiff lost a commercial opportunity – HELD – held that the case was not one of the loss of a commercial opportunity – that the plaintiff needed to establish either the first scenario or the second scenario to the requisite standard and that one or the other was more likely than what he in fact did – he failed to establish either to the requisite standard – he also failed to establish that he could not sell the shares or that he reasonably believed he could not – he also failed to establish the quantum of any loss resulting from the second scenario