Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955

Supreme Court New South Wales

Medium Neutral Citation: Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955 Hearing dates: 18 February to 1 March 2013 Decision date: 19 July 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Plaintiff succeeds in establishing negligence, breach of retainer and contravention of s 52 of the Trade Practices Act 1974 (Cth) against the First Defendant. Quantification of judgment to await further calculations. Catchwords: NEGLIGENCE - professional negligence - specialised tax advice - was advice concerning the tax consequences of the proposed business restructure negligent - whether advice that the redemption of preference shares would be tax free was wrong - failure to advert to the definition of "dividend" in s 6(1) of the Income Tax Assessment Act 1936 - failure to warn of the risk of application of s 45B and Part IVA of the ITAA 1936 to proceeds of the redemption- what alternative structures should have been recommended - negligent misstatement.

CONTRACT - was there was a contract of retainer - breach of retainer.

TRADE AND COMMERCE - trade practices - whether defendant engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth).

CAUSATION - whether alleged deficiencies in advice caused liabilities of plaintiff under Deed of Settlement with the Commissioner of Taxation - whether deficiencies must coincide with the precise tax exposures settled under the Deed.

DAMAGES - measurement of loss or damage - alternative structures that should have been recommended - tax consequences of those structures - which alternative would the plaintiff most likely have pursued "but for" the negligent advice - difference between plaintiff's financial position under "but for" scenario and in the events that transpired - benefit of pursuing restructure that was recommended - whether benefit from paying dividends earlier rather than later permanent or temporary - measurement of benefit - valuation of deduction in franking credits from franking account - reflective loss - whether deduction from franking account only caused reflective loss to shareholder.