Cassis & Anor. v. Kalfus [2001] NSWCA 460

I will allow a further period of twenty-eight days for such claim to be articulated. I will then determine any issues which may then arise. 54 The first plaintiff did not take up the invitation contained in the last of those paragraphs, and in the result the primary judge gave the judgments in favour of the respondent to which I referred at the beginning of this judgment.

ISSUES ON APPEAL 55 The grounds of appeal set out in the Amended Notice of Appeal filed on 5th July 2001 were as follows: 1. The Plaintiffs were denied procedural fairness in the conduct of the proceedings before Dowd J. in that: (a) undue and unnecessary delay occurred in delivering judgment(s); (b) his Honour failed to determine all necessary matters in one judgment or at all; (c) his Honour called for further submissions 10 months after the hearing had taken place in circumstances in which further submissions were neither necessary nor appropriate; (d the delay and calling for additional submissions permitted the Defendant to raise or further raise (erroneous) matters 12 months after the completion of the hearing; (e) in holding that the First Plaintiff's claims were time barred his Honour adopted, as the basis for his reasoning, submissions made by the Defendant on 1 March 2001, 12 months after the completion of the hearing, which contained erroneous matters.

2. Delay in determining the limitation issues and in giving judgment.

2A. His Honour erred in granting leave to the Defendant to amend his defence to raise limitation issues.

3.His Honour erred in holding that the First Plaintiff's claim against the Defendant for negligence as a solicitor was barred by the Limitation Act 1969 (NSW).

4. His Honour erred in holding that the First Plaintiff's claim against the Defendant as joint venturer was barred by the Limitation Act 1969 (NSW).

His Honour erred in holding that the First Plaintiff's claim against the Defendant as a fiduciary was barred "for breaches occurring outside the limitation period".

His Honour erred in holding that the Second Plaintiff's claim against the Defendant was barred by the Limitation Act 1969 (NSW).

In holding that the First and Second Plaintiffs' claims were time barred, his Honour failed to make necessary findings of fact, inter alia, in relation to causation of damage.

His Honour failed to provide any or any proper reasons for holding that the First and Second Plaintiffs' claims were time barred.

In his judgment of 27 Apri1 2001, his Honour: (a) misunderstood the nature of the First Plaintiff's case; (b) misunderstood the nature of the Second Plaintiff's case; (c) misunderstood the evidence that had been given; (d) misunderstood the law in relation to time limitations;

His Honour misstated the First Plaintiff's case in paragraph 18 of his Honour's judgment (of 27 April 2001) where it is said that it was the First Plaintiff's case that he suffered damage immediately on the coming into effect of "the contract" (presumably a reference to the joint venture agreement); and in paragraph 22 of the judgment of 27 April 2001 where it is said that damages were "specifically claimed from the date of the breach" (presumably a reference to 1989).

His Honour erred (paragraph 20 judgment 27 April 2001) in finding that the First Plaintiff's "loss of employment with his former employer" constituted damage, when in no sense did the First Plaintiff lose his employment and when the evidence was that he suffered no diminution in income immediately after the buyout.

His Honour erred in finding that the Second Plaintiff suffered damage immediately upon executing the transfer (in August 1989) when no damage of any kind was suffered by her at that time.

In the "judgment" of 18 December 2000, his Honour erred in holding that the arrangement entered into in regard to the sharing of profits in the Defendant's legal practice was not illegal and not prohibited by s.119 of the Legal Profession Act 1987. 56 The orders sought were as follows: 1. The judgment of his Honour Justice Dowd of 27 April 2001 and orders of 22 June 2001 be set aside and judgment entered for the Appellants with damages to be assessed.

2. The matter be remitted to a Judge of the Supreme Court (other than Dowd J) for assessment of damages.

3. In the alternative to Order 2 hereof, the Court of Appeal assess damages.

4. The Respondent be ordered to pay the costs of this Appeal and of the proceedings below on an indemnity basis. 57 The respondent filed a Notice of Contention, to the effect that the orders should be affirmed on the following grounds: 1. On the evidence of the Appellants themselves and objective facts before the Court, there was no basis upon which the Trial Judge could properly have found that the Respondent had owed or breached any relevant duty to the Appellants, that they had suffered damage to them by such a breach, or that the damages claimed by them were otherwise than too remote (or, in law, unable) to be held to his account.

2. The Trial Judge erred in holding that there was a presumption operative against the Respondent, and in favour of the First Appellant, arising from the fact that the Respondent was a solicitor.

3. The Trial Judge erred in holding that, despite an absence of evidence, the Respondent should be held to have failed to fulfil obligations he had to the First Appellant as a solicitor.

4. The Trial Judge erred in holding that the Respondent had breached fiduciary duties owed by him to the First Appellant as a joint venturer.

In this Notice of Contention, the respondent also contended that the appeal was incompetent, but, subject to an order that the appellants pay the costs of the Notice of Motion filed 29th May 2001 and their application for leave, he did not object to an order being made so as to enable the appeal to proceed. 58 I propose to deal in turn with the following broad issues: 1. The issue of procedural fairness and delay (Grounds 1 and 2) and deficiency of reasons (Grounds 7 and 8). 2. The question of whether there was error in upholding the Limitation Act defence against the first appellant's claim (Grounds 3-5 and 9-11). 3. The question whether there was error in upholding the Limitation Act defence to the second appellant's claim (Grounds 6 and 12). 4. The question whether there was error in relation to s.119 of the Legal Profession Act (Ground 13). 5. The issues raised by the Notice of Contention. 59 I note that Ground 2A in the Amended Notice of Appeal was abandoned at the hearing. In the light of the concession made by Senior Counsel for the appellants on 28th February 2000 that he could not claim any prejudice (whether this was in fact the case or not), this ground of appeal had no chance of succeeding.

PROCEDURAL FAIRNESS AND DEFICIENCY OF REASONS 60 As contended by Mr. Roberts SC for the appellants, it is clear that paragraph 18 of the judgment of 27th April 2001, asserting that "the first plaintiff's case is that he suffered damages immediately on the coming into effect of the contract", did misstate the first appellant's claim. The damage referred to in the Statement of Claim is all damage occurring from about 1993 onwards. It is correct that the first appellant claimed that, at about the time of entry into the joint venture in early 1989, he did leave secure employment; but whether or not this amounts to damage in the relevant sense is not an easy question. In my opinion, as will appear from my discussion of the second issue, the question of when the first appellant relevantly first suffered damage from the breaches alleged against the respondent is a mixed question of fact and law of some difficulty, which was not addressed at all in the reasons of the primary judge. In my opinion, this means that there would have to be a new trial, unless the result arrived at by the primary judge is plainly correct, or the orders which he made were inevitable having regard to the matters in the respondent's Notice of Contention; and as will be seen, neither of these alternatives is made good. 61 Accordingly, there is no necessity to consider in detail the other aspects of alleged lack of procedural fairness, delay and deficiency of reasons. However, I think it is appropriate to comment briefly on two aspects. 62 Firstly, in my opinion the proceedings at first instance have miscarried in part because of the primary judge's failure to rule on 28th February 2000 on whether an amendment to include the Limitation Act defence should be permitted. One result of this is that it appears that no consideration was given at the time as to whether the appellants would wish to put on any reply to such a defence, such as a reply of fraudulent concealment under s.55(1)(b) of the Limitation Act. The appellants have sought to rely on that matter in this appeal, and understandably the respondent has objected to that on the basis that the case has been heard without the allegation of fraud required for such a pleading having been made. 63 Secondly, problems have arisen from the delay in giving judgment, and particularly from the form in which the first judgment of 18th December 2000 was given. That judgment contained very few findings of primary fact, and made findings of breaches of duty only in the most generalised terms and on the basis of very sketchy reasons. It made no findings as to what damage was suffered, or, very importantly in this case, what damage, if any, was caused by what breaches of duty. This in turn meant that the opportunities offered to the appellants in the judgment of 18th December 2000 to make further submissions concerning personal injuries, equitable relief, and how damage may be divided, were justifiably regarded by the appellants as coming too late. In my opinion, either such opportunity should have been given at the very latest shortly after the conclusion of the hearing, or else the primary judge should have done his best to decide the case on the material which he had. A fortiori, the further opportunity offered in the judgment of 27th April 2001 was far too late.

LIMITATION DEFENCE TO FIRST APPELLANT'S CLAIM 64 As noted earlier, the first appellant's specification of damage did not include damage occurring prior to 1993. 65 In order to make out his case, the first appellant had the onus of proving some damage as alleged, and of proving that it was caused by breaches of duty established in the case. To make out his defence based on the Limitation Act in respect of the claim in tort, the respondent had the onus of proving that damage was in fact suffered from the relevant breach or breaches prior to the middle of 1990. He could do this either by showing that, if the first appellant suffered the damage claimed by the first appellant, then this must have involved damage suffered prior to mid-1990; or alternatively by proving that the first appellant did in fact suffer damage from the relevant breach or breaches prior to mid-1990. 66 Mr. Lindsay SC for the respondent submitted that the respondent did do this. He submitted that the first appellant always put his case on the basis that the whole of the loss was caused by entry into the joint venture in about early 1989, and made no attempt to separate out later damage caused by later breaches. In particular, he submitted, the first appellant claimed that in about early 1989 he entered into a disadvantageous joint venture, and gave up secure employment. This necessarily involved loss or damage, particularly where on the first appellant's case the joint venture had no settled terms, was induced by misrepresentation, was liable to be set aside, and did not have the backing of a substantial legal practice as the respondent allegedly had represented. Mr. Lindsay also submitted that by early 1989 the first appellant's house had been mortgaged to secure the debts of the business. 67 In my opinion, there is force in these submissions, but they are far from conclusive; and for reasons I will give, I am not satisfied that the primary judge's conclusion on the limitation defence was correct. 68 It is true that the first appellant's case for damages depended upon an assertion that he would not have entered into the joint venture at all but for various breaches of duty by the respondent; but that does not show that entry into the joint venture was at the time of its occurrence a loss sounding in damages. If it had been shown that the true value of what the first appellant obtained in early 1989, assessed as at that time, was less than the true value of what the first appellant gave up, assessed at that time, then this would be such a loss: but that question was not addressed by the evidence and not considered by the primary judge; and in my opinion the available material is insufficient for this Court to address the question and come to any conclusion on it. In all probability, it would require an assessment of competing commercial chances, viewed as at early 1989. 69 It would appear that the joint venture may have been of less value to the first appellant than it would have been if it had been properly documented, if there had been the backing of a substantial legal practice, and if the respondent had negotiated a more secure distribution agreement; and these matters would be directly relevant to a cause of action based on contract or a cause of action which in some other way made the respondent liable for respects in which what the first appellant obtained did not measure up to what he would have obtained if the respondent had fulfilled his commitments. However, they are less directly relevant to the tort measure of damages which, on the way the first appellant put his case, required an overall comparison between the first appellant's situation if he had not entered into the venture at all, with his situation which actually arose when he did enter into the venture. 70 On the question whether giving up secure employment was itself a loss or damage, I note first that it was not shown that the real benefits received by the first appellant from the new arrangement were less than the benefits from the secure employment, prior to about 1993. In those circumstances, I think the question of whether giving up secure employment amounted to loss or damage depends upon the type of general comparison to which I have referred previously. 71 The mortgaging of the first appellant's house to give security for debts of the business could be a relevant loss or detriment: see Forster v. Outred & Co [1982] 1 WLR 86, discussed but not disapproved by the High Court of Australia in Wardley Australia Limited v. Western Australia (1992) 175 CLR 514. However, this was not relied on before Dowd J; and even if it had been, in my opinion the better view is that this too would need to be taken into account in an overall comparison of the type to which I have referred, rather than considered in isolation. As I will attempt to show, I think this follows from an analysis of Wardley and Forster, particularly having regard to principles discussed in Sellars v. Adelaide Petroleum (1994) 179 CLR 332. 72 I accept that, if one can point to an actual loss of money or property, or a non-receipt of money or property, or damage to property, or to some physical or psychological injury, it is not possible to say that no loss or damage has occurred simply because of the possibility that the plaintiff has obtained some countervailing advantage. But it is at least strongly arguable, as a matter of mixed fact and law, that nothing like this occurred in this case until about 1993; so that the defendant's claim that, if the plaintiffs suffered damage at all from breaches of duty occurring around the time of entry into the joint venture agreement, it must have involved loss or damage suffered at that time, must depend upon a global comparison of the type to which I have referred. As mentioned earlier, that global comparison was not undertaken below, and the material does not enable this Court to undertake it. 73 It remains on this question to state briefly how I see the above propositions resulting from the decisions in Wardley and Forster and Sellars. 74 Wardley established that a person granting an indemnity, under which he or she is obliged to make a payment when the loss of the party to be indemnified is ascertained and quantified, suffers no actual loss until this contingency is fulfilled; so that a cause of action for purely economic loss, dependent upon damage being caused by the granting of the indemnity, does not arise until that contingency occurs. However, during the discussion of this question at 175 CLR 527-533, the majority of the High Court did not disapprove of Forster v. Outred, where it was held that a plaintiff suffered actual loss, not merely prospective loss, when, on negligent advice from her solicitors, she executed a mortgage over her property to secure debts of her son. Their Honours explained this case by reference to the immediate effect of the mortgage on the value of the plaintiff's property, which had previously been free from encumbrances. 75 Sellars decided that loss or damage may be established by demonstrating the loss of a commercial opportunity which had some value, not being a negligible value, this value being ascertained by reference to degrees of probabilities or possibilities: see 179 CLR at 355. 76 Thus it would seem that, if one can characterise an economic disadvantage suffered by a plaintiff as involving the loss of a commercial opportunity which has some value, then that will be enough to constitute actual damage and to complete a cause of action (Sellars). However, if the economic disadvantage is no more than a contingency for future loss, then, unless and until the contingency occurs, there is no damage and no cause of action (Wardley). If one has a mortgage encumbering a property which was previously unencumbered, in isolation, then the effect of the mortgage on the value of the property will constitute immediate loss (Forster). However, if that encumbrance is part of an overall arrangement with some benefits as well as burdens, then in my opinion the matter has to be approached applying the principles derived from Sellars and Wardley. 77 My views on this principal question means that it is not absolutely necessary for me to deal with other matters arising in relation to this issue; but I will do so briefly. 78 First, there is the question whether different considerations apply to the first appellant's claim for psychological injury. There is authority that there are distinct causes of action for personal injuries and property damage arising out of the same negligent act of a defendant: see Brunsden v. Humphrey (1884) 14 QBD 141, Marlborough Harbour Board v. Chartered Travel Co. Limited (1989) 18 NSWLR 223. However, I do not think that would apply in a case such as the present, where it is alleged that the personal injury itself was occasioned through the commercial loss: cf Avenhouse v. Hornsby Shire Council (1988) 44 NSWLR 1. That is, there is in this case no allegation of a duty to protect or preserve the first appellant from mental or physical injury: the duties alleged are essentially to protect the first appellant from commercial harm. Accordingly, subject to what I say next, the claim for psychological injury would be barred if the claim for commercial loss is barred. 79 There is however the question of whether, in relation to this part of the first appellant's claim, an extension might have been sought under Schedule 5 and s.60G of the Limitation Act. It seems to me arguable that an action claiming personal injuries occasioned by commercial loss, if otherwise maintainable, may fall within s.60G as a cause of action founded on breach of duty for damages for personal injury. No application under s.60G was in fact made in this case. Such an application should have been made or foreshadowed, at the latest, on 28th February 2000; but the failure to make such application can reasonably be regarded as in part due to the respondent's belated application to add the Limitation Act defence. 80 Much the same comments apply in relation to the first appellant's attempt to rely on fraudulent concealment. If this was to be relied on, notice of this should have been given, at the latest, on 28th February 2000; but again, one may reasonably regard the failure to do so as caused in part by the respondent's belated application to rely on the Limitation Act. 81 In relation to the application of the Limitation Act to a cause of action for damages or compensation for breach of fiduciary duty, it would appear that s.23 means that the six year limitation period does not apply, except by analogy. Williams v. Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 could be seen as authority for at least the proposition that the six year limitation should not automatically be applied to such a claim, and that it is necessary to consider factors relevant to the aptness of the analogy. One matter that might be relevant here is that the extension provided by s.55 of the Limitation Act for fraudulent concealment would not directly apply to such a claim, because in relation to such a claim there is no "limitation period fixed by or under this Act" within the meaning of s.55(1): it might be that considerations relating to the appropriateness of applying the six year limitation by analogy would include matters which would go to fraudulent concealment of a claim to which the Limitation Act does apply. If that were so, then the absence of a reply might not be fatal to reliance on facts amounting to fraudulent concealment in relation to the equitable claims. The view of Deane J in Hawkins v. Clayton (1988) 164 CLR 539 at 589 might also have some bearing on this question. Although I am far from satisfied that it would not be appropriate to apply a six year period by analogy, I do not think this issue was adequately addressed by the primary judge. 82 Finally on this topic, there was a submission by the first appellant that the primary judge should have considered whether there were causes of action arising after mid-1990 due to breaches occurring after that date or breaches in respect of which damage first occurred after that date. In my opinion, it would have been a denial of natural justice to the respondent in this case to have made a finding against the respondent on any such basis, in circumstances where a claim on that basis had not been formulated with any clarity by the first appellant. A plaintiff must put a claim in some reasonably clear way before a court can give effect to it, because otherwise the defendant cannot adequately respond to it and a court would deny the defendant natural justice if it gave effect to such a claim. It is not enough to include in a global claim for damages some items of damage that might be held referable to particular breaches occurring within the limitation period. In my opinion, the circumstance that the allegations of breach of duty in this case included allegations of breaches in relation to the White and Vesaro mortgages and the Roden transaction, and the list of damage included items relating to those transactions, did not amount to a sufficiently clear formulation of a distinct claim arising within the limitation period. 83 However, I note that the primary judge did feel that the conduct of the case made it appropriate that the first appellant be given an opportunity to clarify such a claim; but he did so at a time and in circumstances where the first appellant could reasonably feel that to do so would result in further unacceptable delay. The limitation question was argued at the hearing and in written submissions shortly thereafter, so in my opinion the invitation should have been given, if at all, at that time and not in December 2000 and/or April 2001. Thus, the failure to consider distinct claims arising since mid-1990, although it may not of itself have justified a new trial, does add some weight to the need for a new trial.

LIMITATION DEFENCE TO THE SECOND APPELLANT'S CLAIM 84 Although this claim is not clearly pleaded in this way, I think it should be understood as alleging a continuing breach. In my opinion also, on a fair construction of the Statement of Claim, the second appellant accepted that the duty on the respondent to effect a transfer of her interest was not something that could have prevented the charge in favour of BNP arising. The gravamen of the complaint is that, not only was there no attempt to remove that charge from the second appellant's half interest, but also that half interest was further burdened later on by transactions with the NAB and in connection with the White and Vesaro mortgages. Viewed in that way, the second appellant's claim was in my opinion plainly not statute barred. 85 However, the value of that claim was vastly less than alleged by the second appellant. The Statement of Claim apparently put the value at $450,000.00, equating it with the loss of the house. The written submissions put it at around $288,000.00, namely the difference between the value of the house and the $162,000.00 which the second appellant received from the sale proceeds of the house. In my opinion, at the very highest the second appellant's claim would be for one-half the value of the house ($225,000.00) less one-half the $70,000.00 or thereabouts still owing from the finance used to obtain the house, less the $162,000.00 which the second appellant actually received, giving a figure of $28,000.00. Indeed, the claim would probably be less than this: the evidence did not show any realistic chance of getting rid of the BNP's $200,000.00 charge, so that this $200,000.00 plus the first appellant's share of the $70,000.00 (235,000.00 in all) also had to come out of the property. $225,000.00 of this would come from the first appellant's share, leaving $10,000.00 to come from the second appellant's share, reducing her claim to about $18,000.00.

LEGAL PROFESSION ACT SECTION 119 86 The primary judge's decision on this question has little bearing on the result of the case, either on this appeal or on any re-trial. I think it would be best not to enter into this question in this judgment.

NOTICE OF CONTENTION 87 Oral submissions did not deal with the Notice of Contention. I would take the view that the findings made by the primary judge as to breaches of the respondent's duties were in a form insufficiently precise to be the basis for any assessment of damages, and that there is a real question as to whether they were adequately supported by reasons. However, I think it is clear that it is not possible for this Court to say that the material before the primary judge could not justify appropriate findings of breaches of duty of the type alleged in the Statement of Claim.

RELIEF ON APPEAL 88 The appellants' Amended Notice of Appeal sought orders that judgment be entered for the appellants with damages to be assessed, that the matter be remitted to a judge of the Supreme Court other than the primary judge for assessment of damages, and in the alternative, that the Court of Appeal assess damages. No order for a new trial was sought. In my opinion, it is plain beyond any argument that it would not be appropriate for judgment to be entered for the appellants for damages to be assessed. In my opinion, the appeal succeeds essentially on grounds related to deficiencies in the reasons and in the process, and not because I am to any degree satisfied that the appellants are entitled to a judgment. Furthermore, as just noted, the findings of breach of duty made by the primary judge were totally inadequate to support a judgment for the appellants for damages to be assessed; and in any event, there was no finding as to causation of damage. 89 Although this has not been sought by the appellants, in my opinion the appropriate order is for a new trial on all issues before a judge other than the primary judge. There should in my opinion be further orders with a view to ensuring that the trial does not miscarry again. A large factor in causing the trial to miscarry has been the lack of precision in the appellants' pleading. It is not acceptable to plead a series of breaches occurring over many years, and then to make a global pleading of damage caused by all the breaches. While it may be appropriate to bring a claim arising out of an ongoing relationship, involving a number of breaches occurring over many years, and while it could be productive of complexity and repetition to require each individual breach to be explicitly linked to allegations of damage caused by that breach, a pleading should enable definition, in a way fair to both parties, of issues concerning breach, causation and quantum of damage in relation to each cause of action relied on. It may be possible to group causes of action where the damage involved in each of them are substantially the same, so long as this can be done without obscuring issues of causation and quantum of damages arising in relation to each of them. The pleading in this case was grossly inadequate in this regard, and in my opinion would be liable to be struck out. I propose to order that the appellants, within 28 days, serve a fresh draft Statement of Claim which does appropriately raise issues concerning causation and quantum of damages in relation to each substantially distinct cause of action relied on.

COSTS 90 The miscarriage of these proceedings was in part the result of the inadequate Statement of Claim. It was also in part the result of the limitation defence being raised after the commencement of the hearing. The respondent has made no attempt before us to argue that this was truly justified by the extent of the change made between the third and fourth versions of the Statement of Claim. In my opinion, it is appropriate to leave the costs of the first trial in the discretion of the judge who hears the new trial. 91 Turning to the costs of the appeal, it would seem that the respondent is entitled to some costs. The appeal was incompetent when first brought, and the motion to strike it out was justified. Once final orders had been made below, the respondent sensibly took the approach that the appeal should be dealt with on its merits, but costs had been incurred in the meantime. 92 Some costs were incurred by reason of inclusion of the hopeless Ground 2A. Neither before the primary judge nor in written submissions was there any significant attempt by the appellants to deal explicitly with the respondent's contention that the loss of secure employment and the entry into the unsatisfactory joint venture were themselves losses which completed the cause of action. The Amended Notice of Appeal did not even seek the only form of relief which could possibly have been granted, and which has been granted, namely a new trial. 93 In all the circumstances, in my opinion the appropriate order is that each party pay its own costs of the appeal, with the respondent having a certificate under the Suitors Fund Act if otherwise entitled.

ORDERS 94 Accordingly, the orders I propose are: 1. Appeal allowed. 2. Orders made by primary judge on 22nd June 2001 set aside. 3. Matter remitted to Common Law Division for a new trial before a different judge. 4. Costs of first trial to be in the discretion of the judge hearing the new trial. 5. Each party to pay its own costs of the appeal, the respondent to have a Suitors' Fund Act certificate in respect of its costs if otherwise entitled. 6. Order that the appellants within 28 days serve a fresh draft Statement of Claim which appropriately raises issues concerning causation and quantum of damages in relation to each substantially distinct cause of action relied on. ************

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