Vertzayias v King & Ors [2011] NSWCA 215

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vertzayias v King & Ors [2011] NSWCA 215 Hearing dates: 16 May 2011 Decision date: 29 July 2011 Before: Giles JA at [1], Macfarlan JA at [137], Whealy JA at [138] Decision: (1) Direct that the name of the appellant in the notice of appeal and subsequent documents be amended to "Dion Vertzayias"; (2) Order that the appeal be dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - Solicitor's negligence - but for negligence client would not have entered into loan transactions as borrower - damages assessed at amount currently owed to lender - whether failed to recognise benefit to client of repayment from loan moneys of existing loan to third party guaranteed by client - comparison of client's position having entered into transactions with position if had not entered - finding that third party would have paid out the existing loan - client would not have been called on to pay as guarantor - client now liable for corresponding amount and called on to pay - damages currently included the corresponding amount and interest. COSTS - Proceedings by lender against client settled - order made "no order as to costs" - loan remained on foot - whether order prevented lender from debiting costs of proceedings to loan account - did not prevent it. PRACTICE AND PROCEDURE - Amendment - application after reasons published to amend to claim apportionment with concurrent wrongdoer - leave to amend refused - refusal correct - no question of principle. Legislation Cited: Australian Securities and Investment Commission Act 2001 (C'th) Civil Liability Act 2002 Contracts Review Act 1980 Trade Practices Act 1974 (C'th) Cases Cited: re a Solicitor's Bill of Costs: re Shanahan (1941) 58 WN 132; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; Coolibah Pastoral Co Pty Ltd v The Commonwealth (1967) 11 FLR 173; Elders Trustees & Executor Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205; Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) (1993) Ch 171 at 192; Re Hodgkinson, Hodgkinson v Hodgkinson (1895) 2 Ch 190; J J Leonard Properties Pty Ltd v Leonard (WA) Pty Ltd (No 2) (1987) 13 ACLR 77; Maher v Network Finance Ltd (1986) 4 NSWLR 694; Mansfield v Robinson (1928) 2 KB 353; Multiplex Constructions Pty Ltd v Irving [2005] NSWCA 1; Oshlack v Richmond River Council (1998) 193 CLR 72; Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 43; Trikas v Rheem (Aust) Pty Ltd (1964) 81 WN (Pt 1) 504; Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; Wentworth v Wentworth [1999] NSWSC 638; Wilby v St George Bank Ltd [2000] SASC 138; Wood v Wood (1997) 149 ALR 301. Category: Principal judgment Parties: Dion Vertzayias - Appellant Charles Stuart King - First Respondent Paul David King - Second Respondent Permanent Custodians Ltd - Third Respondent Representation: J C Kelly - Appellant P Morris SC & R Francois - First Respondent D J Burke - Third Respondent Colin Biggers & Paisley - Appellant Legal Aid Commission of NSW - First Respondent Norton Rose - Third Respondent File Number(s): CA 2006/265811 Decision under appeal Citation: Permanent Custodians Ltd & Anor v King [2009] NSWSC 600, [2010] NSWSC 95, [2010] NSWSC 554 Date of Decision: 2010-05-25 00:00:00 Before: Schmidt J File Number(s): SC 15433/06