Lindsay-Owen v HWL Ebsworth Lawyers

1. [1]

   HIS HONOUR: The events that give rise to this litigation began in 2005 when Mr Lindsay-Owen retained the defendants to act for him, although the relevant history of the Schofields land goes back many years before then. The amended statement of claim was filed on 8 July 2016. Malcolm Turnbull had just days earlier been returned as Prime Minister of Australia in the first double dissolution election since 1987. Barack Obama was at that time in the final months of his second presidential term. Much has changed in Australia and the United States in the nine years since then. Much less has changed in these proceedings.

2. [2]

   The substantive hearing of the matter commenced before me on 7 March 2022. It proceeded until 1 April 2022 when I reserved my decision. My first judgment was published on 17 February 2023: Lindsay-Owen v HWL Ebsworth Lawyers [2023] NSWSC 68. My second judgment was published fifteen months later on 10 May 2024: Lindsay-Owen v HWL Ebsworth Lawyers (No 2) [2024] NSWSC 541. Now, fourteen months after that, in a case in which breach of duty by the defendants and breach of their retainer was admitted on 12 March 2022, the end is still not in sight.

3. [3]

   The final paragraph of my first judgment was as follows:

4. [4]

   In what was clearly a triumph of hope over experience, I concluded my reasons for my second judgment on 10 May 2024 with the following words:

5. [5]

   Progress is a relative concept. The stage has now been reached in which the parties have somewhat remarkably agreed that their remaining disagreements about the matters that require final determination can be reduced to the following five issues:

6. [6]

   So, by notice of motion filed on 11 July 2025, the plaintiffs moved the Court for the following relief:

7. [7]

   These orders are opposed by the defendants.

8. [8]

   UCPR 20.14 is relevantly as follows:

Consideration

1. [9]

   Each of my judgments proceeded upon the basis of an express acceptance by the parties that I should provide what in effect were the legal and factual integers with the benefit of which the parties and their experts would then proceed to crunch the numbers. That, obviously, has not occurred. Instead, I have been presented with competing versions of the issues that remain outstanding and which must be resolved before the final amount of the plaintiffs’ damages can be calculated.

2. [10]

   The four issues which are the subject of the plaintiffs’ motion are quintessentially tax accounting issues. They involve potentially difficult questions that invite consideration by people with tax accounting expertise. I do not qualify as such a person.

3. [11]

   The defendants’ proposal is that on 5 and 6 August 2025, when the matter is next before me, I hear expert opinion evidence and competing submissions on all five as yet unresolved issues in dispute and decide these issues with reasons for my judgment. The plaintiffs’ proposal, in contrast, is that the issues be referred to experts who can assess the competing views with the benefit of their own expertise and experience without the need for a two day hearing or the requirement for me to decide which view is correct. The plaintiffs’ proposal proceeds upon the basis that the answer does not lie in a judicial determination of which view is to be preferred but in the provision of the answer arrived at by two suitably qualified experts with no situational or historical connection or allegiance to either party. That is the approach I prefer.

4. [12]

   The plaintiff’s position has the added advantage of eliminating the need for a full-blown hearing on the four issues in question, with a significant prospect that the correct answers will be arrived at in a technical fashion without the overlaid excesses of an adversarial contest and potentially more quickly as well. The fact that dissatisfaction with the outcome might result in a contested adoption hearing, as the defendants have somewhat pessimistically been quick to emphasise, if not predict, should not in my view be permitted to divert attention from the advantages of a reference out in accordance with UCPR 20.14.

5. [13]

   Although the parties were going to attempt to agree on the identity of the proposed referees, including their particular field or fields of expertise, that has so far not occurred. I somehow doubt that it will. However, the parties should where possible be the authors of their own destiny. To that end I will direct them to provide me with the usual form of order for reference, naming either the proposed referees or the mechanism by which they should be appointed, by no later than 10am on 5 August 2025.