Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158 (03 August 2021) (Payne JA at [1]; White JA at [261]; McCallum JA at [262])


Catchwords:


NEGLIGENCE – professional negligence – solicitors – where appellant law firm was retained to advise the respondent as to his rights in a family law partnership – whether appellant failed to give competent advice to the respondent about the manner and circumstances of the exercise of a put option granted by a put and call option agreement forming part of the partnership documents – breach of retainer and concurrent duty of care

NEGLIGENCE – professional negligence – causation – factual causation – where respondent would have exercised put option had he been properly advised of his rights – where failure to give competent advice caused loss

CONSUMER LAW – misleading or deceptive conduct – professional advice – where a dangerously incomplete statement of the respondent’s rights was misleading and deceptive in that it was apt to mislead the respondent into believing that his legal rights were ineffective

CONTRACTS – implied terms – terms implied in law – necessity

CONTRACTS – implied terms – terms implied in fact – necessary to give business efficacy

CONTRACTS – construction – interpretation – calculation of purchase price under formula prescribed in a put and call option agreement

APPEALS – damages – where primary judge awarded damages and required an undertaking as to repayment pending the outcome of related proceedings – whether primary judge erred in not assessing damages on a lump sum basis once and for all – whether this Court should itself determine the damages payable on a lump sum basis – approach for correct assessment of damages