Bluth v Boyded Industries Pty Ltd

[2024] NSWCA 67

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeals from findings of fact
3. › Credibility of witness
4. › Where credibility informed assessment of competing documentary, affidavit and oral evidence
5. › Whether primary judge's finding based on credibility and demeanour should be disturbed
6. › Whether glaring improbability or compelling inference to the contrary established
1. Negligence
2. › Solicitors' negligence
3. › Breach of duty of care
4. › Failure to advise against lodgement of caveat
5. › Damages
6. › Loss of chance
7. › Loss of opportunity to exercise right of rescission under call option deed
8. › Whether lost opportunity had some non-negligible value
9. › Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
1. Negligence
2. › Damages
3. › Loss of chance
4. › Ability to pay
5. › Whether sufficient evidence to infer third party's ability to pay
6. › Where properties encumbered with mortgages and terms unknown
7. › Where balance sheet showed liabilities exceeding assets
8. › Whether evidence rose above speculation or surmise

Quick Take

Loss of chance claims involving third-party ability to pay require evidence going beyond mere ownership of encumbered assets — claimants must establish equity, borrowing capacity, or income sufficient to support the inference of ability to pay, particularly where balance sheets show liabilities exceeding assets.