Neradovsky v Burnett [2015] NSWSC 1458

Supreme Court New South Wales

Medium Neutral Citation: Neradovsky v Burnett [2015] NSWSC 1458 Hearing dates: 13 – 16 October 2014; 20 October 2014 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Common Law Before: Rothman J Decision: 1. Judgment for the plaintiff against the first and second defendants; 2. The damages claimed will be reduced by 15 per cent on account of contributory negligence; 3. The first and second defendants shall pay the plaintiff's costs of and incidental to the proceedings, as agreed or assessed; 4. Any party may apply, in writing, for a different or special order as to costs. Such application shall be made within 14 days of the date hereof and be accompanied by a submission in relation thereto (including any documents upon which the application relies other than documents already in evidence) and may be the subject of response within a further 14 days from the receipt thereof. Any such submission or submission in reply (excluding the accompanying evidence) shall be no more than 3 pages in length. In the absence of an application otherwise, the costs will be decided on the papers; 5. The plaintiff shall serve a minute of the order in relation to damages, including interest and including interest on costs, in the usual form, and file same after agreement by the defendants or after 14 days from the date of service of the draft minute, whichever occurs first. In the circumstance that there is disagreement as to terms of the order reflecting these reasons for judgment, the matter will be re-listed for hearing. Catchwords: NEGLIGENCE – breach of contract, fiduciary duty and duty of care – solicitor and client relationship – applicability of Civil Liability Act 2002 – apportionment – contributory negligence Legislation Cited: Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Beach Petroleum NL v Abbott Tout Russel Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 Council of the City of Greater Taree v Wells [2010] NSWCA 147 David v David [2009] NSWCA 8 Dominic v Riz [2009] NSWCA 216 Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 Joslyn v Berryman (2003) 214 CLR 552 Pennell v Smith (1855) 43 ER 834 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Willison v Warburton (1873) 4 ALR 66 Category: Principal judgment Parties: Alison Neradovsky (Plaintiff) Karl Burnett (First Defendant) KB Legals Pty Ltd (Second Defendant) Representation: Counsel: G. Curtin SC/with R. Francois (Plaintiff) R. Sheldon/ with H. Mann (First and Second Defendants)