Jadwan Pty Ltd v Rae & Partners

THE APPLICANT'S SUBMISSIONS 62 In response, counsel for the Applicant, Mr Pearce SC, submitted that the Court should not proceed on the basis that the proceedings were analogous to a building case; that Jadwan had contracted with Mr Selby-Hele to build a new nursing home facility for the price contained in the quote and that the dispute before the Court relates to unpaid amounts. Mr Pearce submitted: This case, I need to remind your Honour, is a case of professional negligence against solicitors who, it [is] said, failed to give the proper advice and [it is] said that that caused certain loss. 63 Mr Pearce developed that argument (at P 833 to 834 of the transcript) by reminding the Court that, in respect of the task before it, there were vast numbers of past hypothetical facts that the Court would need to make findings about, and that all parties accepted that to be so. The Court must decide, he submitted, whether Jadwan might have applied for an injunction, what might have been the outcome of that application, and then, assuming Jadwan would have obtained an injunction, consider what Jadwan might have done. Mr Pearce submitted that the High Court had held, on at least two occasions that, in the realm of past hypothetical fact, there may be no alternative but to speculate and engage in conjecture. He submitted the evidence contained in Jadwan's business records was properly available to be relied upon as the basis of that necessary speculation and conjecture, relevant to what it would have cost Jadwan to relocate. 64 Mr Pearce submitted that the Court should not be under the impression that the evidence in question was relevant to Jadwan's claim for $7 million in lost profits. He submitted that, contrary to what the Court might have understood on the basis of the Respondents' submissions, the Applicant's primary submission was that Jadwan would have continued to operate Derwent Court Nursing Home from the Fitzroy Place premises. That was its primary claim. It was only if the Court was to reject that premise that the cost of moving to a specified site would become relevant. 65 Mr Pearce submitted (at P 834, line 4 of the transcript): …when we move to scenario B however, which is what these matters go to, Mr Selby-Hele's quote, Mr Calder's estimate of the time it would have taken, these matters go to what additional costs would have been [incurred] in the relocation option. 66 That is, he submitted, the use the Applicant intended for the evidence to the proper measure of the reduction of the $7 million in profits it had claimed under scenario A. The evidence that Mr Ferrier would have a foundation to opine about, if permitted to have regard to the representations in the three documents, was that it would have cost Jadwan in the order of $2.445 million to relocate. That would significantly reduce the loss claimed under scenario B to about $3 million. Mr Pearce explained the Applicant intended to use the material to provide an evidentiary basis for the Court to engage in the necessary speculation and conjecture regarding the cost of relocating, had Jadwan pursued that option, so as to operate Derwent Court from alternative premises. 67 Mr Pearce submitted that the Respondents had been aware of the existence of the three letters since March 2016. He submitted that the Respondents had been on notice of their intended use since at least November 2016, particularly with respect to the reduction of damages calculations in its 'Scenario B'. They had had ample time and opportunity to provide any contrary evidence of what it might have cost Jadwan to relocate. They had made the choice not to do so. 68 He submitted that the Respondents had not taken any steps to dispute the reasonableness of the assumptions upon which Mr Ferrier had been asked to prepare his expert evidence. In taking no steps other than attempting to exclude the evidence which would establish the basis for those assumptions, the Respondents had made a deliberate forensic decision. Their objections to its admissibility having been rejected, the Respondents could not be heard to say its reception would be unfair. They were bound by the consequences of their own forensic decisions.