Thompson & Anor t/as Staunton and Thompson Lawyers v Schacht [2014] NSWCA 247

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Thompson & Anor t/as Staunton and Thompson Lawyers v Schacht [2014] NSWCA 247 Hearing dates: 30 April 2014 Decision date: 30 July 2014 Before: Basten JA at [1]; Barrett JA at [47]; Leeming JA at [126] Decision: Appeal to be allowed; order 1 made in the Common Law Division and entered on 21 May 2013 to be set aside; judgment for reduced damages to be awarded. The parties are directed to confer with the purpose of resolving any outstanding issues and providing consent orders giving effect to the judgment of this Court within 21 days of delivery of these reasons. In the event that agreement is not achieved, whether in part or in whole, each party should file, no later than 35 days after delivery of these reasons, a document identifying his or their proposed orders and a short statement explaining the basis of any calculation and the reason for orders in that form. [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 - measure and remoteness of damages in actions for tort - measure of damages - negligence - negligence by solicitors in preparing a financial agreement between spouses causing the agreement to be not binding - subsequent compromise of matrimonial litigation on terms less advantageous to one party than those provided for in the defective agreement - damages for negligence awarded to that party based on the difference between actual financial outcome and that which would have pertained had the agreement been binding - whether certain components wrongly included by primary judge Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E, 50 Family Law Act 1975 (Cth), Part VIIIA, ss 90, 90F, 90G, 90K, 90KA Cases Cited: Clark v Macourt [2013] HCA 56; 88 ALJR 190 Fink v Fink [1946] HCA 54; 74 CLR 127 Heenan v Di Sisto [2008] NSWCA 25 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Paino v Paino [2008] NSWCA 276; 40 Fam LR 96 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768 Schacht v Bruce Lockhart Thompson and Dennis Michael Staunton (trading as Staunton and Thompson Lawyers) (No 3) [2013] NSWSC 316 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Category: Principal judgment Parties: Bruce Lockhart Thompson and Dennis Michael Staunton t/as Staunton and Thompson Lawyers (Appellants) Daniel Schacht (Respondent) Representation: Counsel: A P Cheshire (Appellants) P S Braham SC/D A Lloyd (Respondent) Solicitors: HWL Ebsworth Lawyers (Appellants) RGSLaw (Respondent) File Number(s): CA2013/142839 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 316 Date of Decision: 2013-04-10 00:00:00 Before: Johnson J File Number(s): 2009/297435