Ralston v Jurisich

1. [1]

   WARD JA: I have had the advantage of reading in draft the judgment of McDougall J and agree that, for the reasons his Honour gives, the appeal should be dismissed with costs.

2. [2]

   EMMETT AJA: The question in this appeal is whether the appellants, a firm of solicitors (the Solicitors), should be held liable for the amount of income tax that the respondent, Mrs Helen Jurisich, was required to pay in connection with the realisation of shares she held in her family company (the Company). She realised the shares by means of a buy-back and incurred a liability for tax of a substantial sum on the basis that the money paid to her by the Company was deemed to be a dividend.

3. [3]

   Mrs Jurisich sued the Solicitors in the District Court on the basis that they should have advised her to obtain tax advice before proceeding with the buy-back. The way in which Mrs Jurisich put her case in her statement of claim was by no means clear. The allegations made in the statement of claim, as relevant, may be restated as follows:

4. [4]

   It was common ground that the Solicitors were in breach of their duty to Mrs Jurisich as their client in failing to advise her to obtain tax advice and that, whatever she received by way of a voluntary winding up, would not have been assessable in her hands. However, it is clear that there was no suggestion in the statement of claim that, but for the advice of the Solicitors, Mrs Jurisich would not have sold her shares in the Company and would not have incurred the tax liability. Nor does the statement of claim allege that, by relying on the advice of the Solicitors, Mrs Jurisich lost the opportunity of realising her shares by means of a voluntary winding up of the Company.

5. [5]

   The Solicitors contended, first, that, for various reasons, Mrs Jurisich was very reluctant to participate in a voluntary winding up of the Company such that, even if properly advised about the potential tax liability, she would not have participated in a voluntary winding up. Second, the Solicitors contended that, had Mrs Jurisich proceeded along the path of a voluntary winding up, there was no evidence that she would have in fact received at least the same amount as she received in the buy-back.

6. [6]

   A judge of the District Court (the primary judge) held that, had the Solicitors advised her to obtain tax advice, she would not have proceeded with the buy-back but would have agreed to a voluntary liquidation of the Company and, in such a voluntary liquidation, would have received at least the same amount as she received under the buy-back but would not have incurred any liability for income tax. [1] The Solicitors now appeal from the orders of the District Court that they pay damages to Mrs Jurisich equivalent to the amount of tax she was required to pay plus interest, in addition to a proportion of the accounting fees incurred by Mrs Jurisich.

7. [7]

   I have had the advantage of reading in draft form the proposed reasons of McDougall J. I agree with his Honour, for the reasons proposed, that, had Mrs Jurisich received advice that the buy-back would result in a liability for tax in a substantial sum, she would have explored the alternative of a voluntary winding up. Whilst she was reluctant to be involved in a voluntary winding up, it is more likely than not that, had she investigated that alternative, she would have participated in the voluntary winding up. I also agree that it is more likely than not that, had she done so, she would have realised at least the relevant sum in respect of her shares and would not have incurred any liability for tax in respect of that receipt. In the circumstances, I agree that the appeal should be dismissed and that the Solicitors should pay Mrs Jurisich’s costs of the appeal.

8. [8]

   McDOUGALL J: In February 2011, the respondent (Mrs Jurisich) held 45 of 200 issued shares in the capital of a company known as Cafagon Pty Ltd (Cafagon). Another 45 shares were held by her brother, Mr Nicholas Oleinikoff (the brother). The remaining 110 shares were held by their mother, Mrs Irene Oleinikoff (the mother).

9. [9]

   Mrs Jurisich wanted to realise the value of her shares. She retained Mr Owen Ratner, then a partner in the law firm Pigott Stinson, to act for her. The appellants are Mr Ratner and his partners at the time in Pigott Stinson.

10. [10]

    Accordingly to its financial statements, Cafagon had about $5.8 million in current assets (as at 30 June 2011, but the figure had been static for some years). Those assets comprised in substance loans to another Oleinikoff family company, Olein Group Pty Ltd (Olein Group). Mrs Jurisich had not been involved in the management of Cafagon, and had concerns about the state of the loan account between Cafagon and Olein Group.

11. [11]

    In practical terms, there were two ways by which Mrs Jurisich could realise the value of her shareholding in Cafagon:

    1. (1)

       through a winding-up, and payment out of her pro-rata share of the net assets; or

    2. (2)

       through a buy-back of her shares.

12. [12]

    Of course, if there were a willing buyer, she could have sold her shares; but there does not seem to have been anyone prepared to buy them.

13. [13]

    After about 8 months of negotiation, Mrs Jurisich decided to proceed by way of buy-back. She received a sum in excess of $1.3 million. That represented 22.5% of the stated net assets of Cafagon. However, for reasons that need not be explored, the receipt was assessable in her hands, as a deemed dividend pursuant to s 159GZZZP of the Income Tax Assessment Act 1936 (Cth). By contrast, had the parties proceeded by way of liquidation of Cafagon, Mrs Jurisich’s share of the net assets would have been tax free, by reason of s 47 of the Income Tax Assessment Act.

14. [14]

    Mrs Jurisich commenced proceedings against Mr Ratner and his fellow partners. She said that Mr Ratner should have advised her of the tax consequences of proceeding by way of buy-back compared to proceeding by way of liquidation, or alternatively should have advised her to seek specialist advice on that subject. She claimed, by way of damages, the amount of tax paid (in round figures, $608,000), an amount in excess of $37,000 for accounting fees, and interest.

15. [15]

    The primary judge found in favour of Mrs Jurisich. He assessed damages at, in round figures, $740,000. The appellants appeal from the whole of his Honour’s decision.

16. [16]

    For the reasons that follow, I am of the opinion that the appeal should be dismissed with costs.

The issues before the primary judge and the grounds of appeal

1. [17]

   The issues before the primary judge, as recorded by his Honour [2] at [6] were:

2. [18]

   The appellants do not challenge the findings of the primary judge, favourable to Mrs Jurisich, on the first, second and fourth of those issues. In this appeal, they contend that the primary judge had erred in holding that Mrs Jurisich had proved factual causation (s 5D(1)(a) of the Civil Liability Act 2002 (NSW)), and should have held that Mrs Jurisich had not proved that:

   1. (1)

      had she been advised by Mr Ratner to seek taxation advice, she would have agreed to the liquidation of Cafagon and the appointment of an independent liquidator, instead of agreeing to a share buy-back;

   2. (2)

      had Cafagon been placed into liquidation conducted by an independent liquidator, she would have received a larger sum, after tax, than she did following the share buy-back; and

   3. (3)

      she had suffered any loss, either as found by the primary judge or at all.

Background

1. [19]

   Cafagon had owned three parcels of land in Lindfield. It sold that land, and realised a substantial capital profit. The land had been acquired before capital gains tax was introduced, and thus the capital profit was not assessable to tax. It was common ground at the hearing that in those circumstances, a return of capital to shareholders following liquidation would not have been assessable to tax in the hands of those shareholders.

2. [20]

   Cafagon’s accountant was Mr Bill Edmondson. Mr and Mrs Jurisich had met him in about September 2005. He told them that there were “possible tax problems within the company, Cafagon” [3] . Neither Mrs Jurisich nor Mr Jurisich made any attempt to find out what those tax problems might be.

3. [21]

   Mrs Jurisich’s attitude in early 2011 was that the affairs of Cafagon had been managed disadvantageously to her, and that realisation of the true value of her shareholding might require her to resort to litigation. That attitude was based, in part, on the fear of tax problems; and in part, on a concern that the stated assets of Cafagon might not be realisable. Mr and Mrs Jurisich were suspicious of the accuracy of the company’s financial records.

4. [22]

   Mr Jurisich confirmed that Mrs Jurisich remained concerned at the prospect of liquidation up until at least late September [4] :

5. [23]

   Mr Jurisich said, further, that Mrs Jurisich did not want to be involved or engaged with a liquidator, and that he told Mr Ratner this [5] :

6. [24]

   Although there had been about eight months of back and forth negotiations by the time Mr Jurisich conveyed those instructions to Mr Ratner, there is no reason to think that Mrs Jurisich had not held those concerns throughout the preceding months. Nonetheless (and contrary to a submission put by Mr Giles of Senior Counsel, who appeared for the appellants on the hearing of the appeal), Mrs Jurisich was not implacably or absolutely opposed to liquidation.

7. [25]

   One of Mrs Jurisich’s concerns, that she would not receive a guaranteed outcome from liquidation, had been allayed by a proposal from the mother at least to promise a fixed payment to Mrs Jurisich in the event of liquidation. That proposal came on 4 October 2011, when Mr John Kell of Hunt & Hunt (the law firm acting for the mother and Cafagon) sent an email to Mr Ratner. The email stated, among other things, that the deed that he proposed the parties should execute would “record that on completion of the winding up [Mrs Jurisich] will receive $1,308,285.68 without deduction (no less than that amount but also no more than that amount)” [6] .

8. [26]

   Mr Jurisich said that a few days later, his wife’s position was as follows: [7]

9. [27]

   The reference to a “deed” in Mr Kell’s email of 4 October 2011 is to a draft deed prepared by Hunt & Hunt and sent to Mr Ratner on 19 September 2011. That draft deed provided, among other things, for the three shareholders to resolve that Cafagon was solvent, and to appoint Mr Steve Nicols as liquidator; for them to cooperate with Mr Nicols in the liquidation of Cafagon; and for the surplus assets following liquidation to be distributed to the three parties in accordance with their shareholdings.

10. [28]

    Mr Jurisich came to the view, after considering the draft deed and the email of 4 October 2011, that the best way forward would be for Mrs Jurisich “to simply sell her shares back to the company. He communicated that view to Mr Ratner, and asked for Mr Ratner’s advice, by an email dated 6 October 2011 [8] :

11. [29]

    Mr Ratner replied that to proceed in the way suggested “would be much cleaner from our perspective”. He suggested that if a liquidator were appointed, the liquidator “will need to know that all liabilities including tax are paid”. Mr Ratner was concerned that “[i]f for any reason [the liquidator] determines there may be liabilities then this would affect how much Helen receives although I could cover this…” [9] .

12. [30]

    Mrs Jurisich decided to proceed by way of buy-back. Mr Ratner communicated that to Mr Kell on 7 October 2011. After some haggling over the amount to be paid, Mr Kell drafted the documents necessary to give effect to a buy-back. They were signed, and the transaction proceeded to completion accordingly.

13. [31]

    In consequence, Mrs Jurisich was assessed to tax on the amount she received for her shares. The amount of tax was $608,172.25. In effect, therefore, Mrs Jurisich received, net of tax, some $700,000 for her shares.

14. [32]

    Put slightly differently, the net economic outcome to Mrs Jurisich could not have been worse on a liquidation, absent an assured fixed payment, unless the net recoverable assets of Cafagon were less than about $3.1 million.

Ground 1

1. [33]

   I start by observing that the reference to “Ground 1” is a misnomer. There is one ground of appeal, with three subgrounds. For convenience, I shall treat each subground as a separate ground of appeal.

2. [34]

   So understood, Ground 1 asserts that Mrs Jurisich had not proved that, had she been advised to seek taxation advice, she would have agreed to the liquidation of Cafagon, involving the appointment of an independent liquidator, in place of a share buy-back.

3. [35]

   This ground involves, as does Ground 2, s 5D(1)(a) of the Civil Liability Act. Ground 1 raises also the question of how factual causation is to be proved: the problem addressed (but not necessarily resolved) by s 5D(3). I set out s 5D:

4. [36]

   Subsections (2) and (4) may be put to one side. There was no issue, either before the primary judge or in this court, as to the scope of liability. Nor was there any suggestion that this case was “an exceptional case”, for the purposes of subsection (2).

5. [37]

   The primary judge dealt with the question of causation at [60] to [63] of his reasons. I set out those paragraphs [10]

6. [38]

   Before I summarise the parties’ submissions, I should note that it was common ground that had Mrs Jurisich been advised to seek tax advice, she would have done so. It was also common ground that a competent adviser would have told her that:

   1. (1)

      a distribution of surplus assets on winding up would not be assessable to tax in her hands; but

   2. (2)

      the proceeds of a share buy-back would be.

7. [39]

   Mr Giles did not submit that the court should take into account the possibility that some other, incompetent and incorrect, advice might have been given.

8. [40]

   Both parties accepted that, as s 5D(3)(a) of the Civil Liability Act states, the question of factual causation is to be determined subjectively, taking into account all relevant circumstances. Mr Giles submitted that the primary judge had erred, because in the third sentence of [62], he had substituted an objective test for the subjective test that the statute requires.

9. [41]

   Mr Giles submitted that the case involved the drawing of inferences from relevantly non-controversial facts. Thus, he submitted, this court was in as good a position as the primary judge to decide what inferences, as to causation, should be drawn from the facts that had been proved. He referred to Warren v Coombes. [11]

10. [42]

    Mr Giles focused his attack on [62] of the primary judge’s reasons. He submitted that in the first sentence of [62], the primary judge failed to identify with sufficient precision the two alternatives. That was so, he submitted, because the true alternatives were a buy-back with the detriment of a tax liability of $600,000, or liquidation with the risks of delay and uncertainty.

11. [43]

    Mr Giles submitted, correctly, that Mrs Jurisich was keen to have the transaction completed with as little delay as possible. Quite apart from the obvious financial incentive, it would seem that Mrs Jurisich hoped that completion of the transaction would facilitate some rapprochement between her, her mother and her brother. Mr Giles referred, also, to evidence given by both Mrs Jurisich and Mr Jurisich that they were concerned with Cafagon’s possible tax problems, the length and cost of liquidation, and the risk that at the end of the day, liquidation might not produce sufficient cash to pay Mrs Jurisich her rateable share of the stated net assets of Cafagon.

12. [44]

    Mr Giles submitted, further, that the primary judge had erred in referring to Mrs Jurisich’s state of mind as at 9 August 2011. He submitted that the correct time to consider her state of mind was later, in October 2011, when (through Mr Ratner) she proposed, instead of liquidation, a share buy-back.

13. [45]

    Mr Donaldson of Senior Counsel, who appeared with Mr Sealey of Counsel for Mrs Jurisich, submitted that this court ought not overturn the primary judge’s decision as to causation unless satisfied that it was erroneous by reference to incontrovertible facts or uncontested testimony, or glaringly improbable, or contrary to compelling inferences from the facts. He referred to Fox v Percy [12] and Takla v Nasr [13] .

14. [46]

    Mr Donaldson then submitted that the primary judge had not erred in his approach to causation. He submitted that if [62] of the reasons were put in context, it was clear that the primary judge had recognised that the alternative of liquidation was unattractive to Mrs Jurisich for the reasons that Mr Giles had summarised.

15. [47]

    Mr Donaldson submitted that the primary judge had not erred (except by a day, which no one suggested was consequential) in identifying Mrs Jurisich’s state of mind as at 9 August 2011. He submitted that, although the situation had developed thereafter, her state of mind as at the earlier date was nonetheless important, because it supported the proposition that she was not resolutely opposed to liquidation.

16. [48]

    I shall start with the question raised, as to the basis on which this court may intervene. As I have said, the appellants’ position is that this court is in as good a position as the primary judge to draw inferences from the primary facts. Mrs Jurisich’s position is that the finding of the primary judge ought not be disturbed except on Fox v Percy [14] grounds.

17. [49]

    I do not think that there is any hard and fast rule. The general position established by Warren v Coombes [15] is that on an appeal by way of rehearing from a judge sitting without a jury, an appellate court is in general in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. The appellate court should give appropriate weight to the conclusion of the trial judge but, if of a different opinion, must give effect to that opinion [16] .

18. [50]

    The decision in Warren was considered and applied in Fox v Percy [17] . Gleeson CJ, Gummow and Kirby JJ referred [18] to Warren and, having done so, reiterated [19] “the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not”. Their Honours said [20] that the requirement to afford appropriate respect to the reasons of trial judges does not “derogate from the obligation of courts of appeal… to perform the appellate function as established by Parliament”.

19. [51]

    Gleeson CJ, Gummow and Kirby JJ then said (omitting footnotes) [21] :

20. [52]

    Their Honours observed [22] , further, that both trial judges and appellate courts should “limit their reliance on the appearances of witnesses and… reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”. That approach, their Honours said, “does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical”.

21. [53]

    I accept that even where the primary facts are not controversial, a trial judge may enjoy an advantage, not possessed by an appellate court, of forming some assessment of the character and personality of the parties (assuming, that they give evidence and are cross-examined on it). A trial judge has the further advantage of hearing and assessing the whole of the evidence within the context of the trial. I accept that in some, perhaps many, cases, those advantages provide significant justification for the need for appellate restraint. That, no doubt, is why it is sometimes said that on a rehearing, an appellate court should not interfere with the findings of a trial judge unless those findings are glaringly improbable, or inconsistent with incontrovertible facts, or contrary to compelling inferences [23] .

22. [54]

    Mr Donaldson, however, appeared to submit that this court, exercising its statutory function of rehearing, could only reverse the conclusions of the primary judge in this case if his Honour’s conclusions could be so described. He referred to the judgment of Heydon J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [24] .

23. [55]

    In that case, the appellant was said to have contravened s 346 of the Fair Work Act 2009 (Cth) by subjecting the respondent to disciplinary action because he was an officer of an industrial association, or had engaged in lawful industrial activity. The Chief Executive Officer of the appellant, Dr Harvey, gave evidence in chief of her reasons for taking disciplinary action against the respondent.

24. [56]

    Thus, there is an immediate contrast with the present case. Mrs Jurisich could not give evidence of her equivalent mental processes, because of the prohibition in s 5D(3)(b) of the Civil Liability Act.

25. [57]

    Dr Harvey was, Heydon J noted, subjected to a “searching cross-examination” which extended “over 70 pages of the trial transcript”, followed by a further three pages of re-examination [25] .

26. [58]

    It was against that statutory and factual background that Heydon J said, in the particular passages of the paragraph on which Mr Donaldson relied (omitting footnotes) [26] :

27. [59]

    I do not think that there is anything in what Heydon J said in Barclay [27] , to suggest that that the principles relating to appellate review, by way of rehearing, established in the cases to which I have referred, should be revisited. On the contrary, I think, Heydon J intended to stress the significance of the advantage of the primary judge in Barclay, and thus the significance of the commensurate disadvantage of the appellate court.

28. [60]

    Equally, I do not see anything in Lord Haldane’s views in Nocton [28] that is inconsistent with the approach to appellate review established by the authorities to which I have referred. But if there were then, with the greatest of respect to his Lordship, his views could not prevail over those authorities.

29. [61]

    Mr Donaldson referred also to the decision of this court in Takla v Nasr [29] . The appellant in that case was a lessee of certain property. She entered into a contract to buy that property which contained quite extraordinary terms, including that some 80% of the purchase price would be paid by way of deposit, to be released to the vendor on exchange of contracts. In return, the appellant would receive (as well as title to the land) a year’s rent free occupation, and return of her bond and all rent paid by her prior to exchange of contracts. The vendor went into receivership. The receiver refused to complete the contract for sale to the appellant. A mortgagee then sold the property. The appellant lost her deposit. She claimed that her solicitor, the respondent, was negligent because, among other things, he failed to explain to her the risks of entering into the contract that she made.

30. [62]

    The appellant gave evidence in cross-examination of what she perceived as special advantages of the transaction. They included that she thought she was paying less than market or true value; and that the saving on rent was of significance to her. The primary judge found, further, that the respondent (by his employed solicitor) had in fact advised the appellant that the relevant terms of the contract were unusual and risky, and that the appellant said that in her view that was why she was getting the property at a bargain price.

31. [63]

    McColl JA, with whom Basten JA (although giving brief additional reasons) relevantly agreed, and Hoeben JA agreed, recounted the evidence and the findings of the primary judge. It is apparent from what her Honour said, including from [28] to [32], that the primary judge’s findings of fact were influenced by the view that his Honour had taken of the credibility of the witnesses on either side. Further, as it appears from [37] of McColl JA’s reasons, the primary judge appears to have regarded, as being of particular significance, his assessment of the appellant as “an intelligent and shrewd woman, of worldly wisdom” who “thought this a very good deal at the time” and who, although warned, “would not … have changed her mind”.

32. [64]

    Against that background, McColl JA said [30] :

33. [65]

    I do not understand her Honour to have been laying down some immutable rule that the findings of a trial judge on the question of factual causation cannot be overturned unless what might be called the Fox v Percy hurdle is cleared. Such a rule would unnecessarily (and in my view unjustifiably) constrain the statutory role of an appellate court performing its duty of rehearing. The approach to be taken must necessarily take account of the way in which the issue was litigated before the trial judge.

34. [66]

    In some cases, there will have been a raging dispute at trial as to credibility. In others, assessment made by the trial judge of the character and personality of a party will have been of significance in his or her assessment of the question of factual causation. In such cases, the relative advantage of the trial judge and disadvantage of the appellate court are obvious. But where the primary facts are uncontested (or, to the extent they are contested, are resolved in a way which does not remain contentious), and what is left is no more than an assessment of the proper inferences to be drawn from those primary facts, the relative disadvantage of the appellate court will diminish, and in some cases may disappear entirely.

35. [67]

    In this context, s 5D(3)(b) assumes some importance. Its effects include preventing a plaintiff from giving testimonial evidence as to his or her mental processes relevant to the question of causation. In consequence, factual causation requires an assessment of all the evidence, and a consideration of the proper inference to be drawn from it.

36. [68]

    Because a plaintiff may not give evidence of his or her mental processes, he or she is unlikely to be directly cross-examined on them. Thus, it might be thought, the question of credibility, and more generally the advantages enjoyed by the trial judge, might be diminished. Having said that I do accept that in some, perhaps many, cases, an assessment of the character and personality of the plaintiff may be important, and that the primary judge, who hears all the evidence and sees the plaintiff in the witness box, will enjoy a real advantage in making that assessment.

37. [69]

    In this case, what Mrs Jurisich wanted from the transaction was clear: to realise what she saw as being the true value of her shares in Cafagon with as little delay as possible. As a matter of reality, there were only two ways in which she could do that. Her views on the disadvantages of one of those ways – liquidation and distribution of surplus – were clear, and it would appear strongly held. To the extent that the primary judge formed some opinion of her character and personality, it does not appear to have influenced his conclusions, except in so far as he referred to her aversion to the risks and uncertainties of liquidation. In those circumstances, and bearing in mind that the primary facts are (now at least) uncontroversial, I think that this court is in as good a position as the primary judge to assess the facts and to decide what inferences should be drawn from them.

38. [70]

    I turn to the question of substance: what are the inferences to be drawn? The first point to note is of course that factual causation involves the application of common sense analysis to the proved primary facts [31] . The purpose of that analysis requires consideration of the probable course of events had the omission (breach of duty) not occurred [32] . In this case, I think, that exercise can be conducted by first considering objectively what inferences as to causation might be drawn from the facts, and second considering whether the evidence as to Mrs Jurisich’s subjective state of mind suggests that she might have decided in some way other than that suggested by the objective analysis.

39. [71]

    It is well settled that the issue of factual causation posed by s 5D(1)(a) of the Civil Liability Act involves an application of the “but for” test of causation: would the harm have occurred in the absence of the breach of duty? [33] A determination on that question “is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities…” [34] . Do the proved facts support the inference that, but for the breach of duty, the harm would not have occurred?

40. [72]

    The requirement that the question of factual causation be decided “subjectively” [35] obliges the court to decide what, on the balance of probabilities, the particular plaintiff would have done in the proved circumstances had there been no breach of duty on the part of the defendant.

41. [73]

    In the present case, it is not sufficient to look at Mrs Jurisich’s expressed aversion to liquidation, and to conclude, simply from that, that she would have preferred to proceed by way of buy-back even if she had been given correct tax advice. The essential question is whether, properly advised as to the tax consequences of the two choices open to her, Mrs Jurisich would nonetheless have chosen a share buy-back as her preferred method for realising the value of her shares, or whether she would have chosen liquidation.

42. [74]

    Mrs Jurisich had two objectives. One was to obtain the full value of her shares. The other was to do so with as little delay as possible. Before the “no less… but also no more” email was sent on 4 October 2011, what Mrs Jurisich saw as the risks inherent in liquidation imperilled both those objectives. The amount that she might receive was uncertain, both because there might be unknown tax liabilities to be discharged and because the intercompany loans might not be recovered in full. Those matters, and perhaps others, were also likely to mean that the process of liquidation would take longer to complete than a share buy-back.

43. [75]

    However, as Mr Jurisich had made clear to Mr Ratner, Mrs Jurisich was not implacably or absolutely or resolutely opposed to liquidation. It has to be asked whether, advised in effect that the speed and certainty of a share buy-back compared to liquidation would cost her in excess of $600,000, she would have proceeded as she did. I can accept that she might have been prepared to pay some premium, or price, in exchange for speed and certainty. I do not accept that she would have been prepared to pay about 45% of her notional 22.5% interest in the stated net assets of Cafagon.

44. [76]

    As I have said, even if there had been no assurance of a fixed return, the liquidation of Cafagon could only produce a lower outcome for Mrs Jurisich than the share buy-back did if there were less than about $3.1 million of surplus assets available for distribution. Accepting that Mrs Jurisich had concerns both as to the extent of Cafagon’s liabilities and the recoverability of its assets, that is a very significant difference from the stated net asset figure.

45. [77]

    In any event, once the assurance of a fixed payment was offered on 4 October 2011, the question of variable return became much less significant. As long as that assurance found its way into the draft deed that Hunt & Hunt had proposed (and both Mr Kell and Mr Ratner seemed to think that this could be done), Mrs Jurisich would recover the promised amount, unless, as I point out at [100] below, surplus net assets fell below about $1.8 million.

46. [78]

    It follows that if Mrs Jurisich had accepted the assurance given in Mr Kell’s email of 4 October 2011, and assuming that the assurance of a fixed payment had been translated into the agreement that was to be made, the remaining risk was only one of delay. In my view, the proposition that the delay might be of such magnitude as to warrant a payment of $600,000 to avert its consequences is unsustainable.

47. [79]

    Mr Giles attacked the proposition that the assurance had any real value. He submitted that there was no evidence of who had offered the assurance, or that Hunt & Hunt acted for the brother.

48. [80]

    I accept that there is no express evidence that Hunt & Hunt acted for the brother. Nonetheless, the reality was that throughout 2011, if Mrs Jurisich and her mother had agreed on a winding up and distribution of the surplus, then (at least, absent oppression), their wish would have prevailed. Between them, they controlled 77.5% of the issued shares in Cafagon.

49. [81]

    In any event, it seems to me to be unlikely in the extreme that Hunt & Hunt would have proposed (as they did) a draft deed, naming the brother as a party, unless they were certain that he would consent to become bound by it. Even accepting that there is no express evidence that the brother had agreed to the assurance proposed in the email of 4 October 2011, it was in my view open to the primary judge, on the balance of probabilities, to conclude that had Mrs Jurisich accepted the proposal, there would have followed a liquidation, from which she would have received the guaranteed sum. I add that if the brother did not agree to that, it could have been settled by agreement between Mrs Jurisich and her mother.

50. [82]

    In those circumstances, I conclude that the primary judge was correct to hold that factual causation had been proved on the balance of probabilities.

51. [83]

    Before moving to Ground 2, I should deal with one submission put by Mr Donaldson [36] . He submitted that Mr Giles could have cross-examined Mrs Jurisich as to whether she would have remained opposed to liquidation had she known that proceeding by way of buy-back would cost her $600,000, but “elected not to put the point to her directly”. The submission that an advocate should not be heard to contend for a particular factual finding against the interest of an opposing party, because the matter had not been directly to that party, is a familiar advocate’s trope. In the present case, I think, it has even less significance than often it does.

52. [84]

    I have set out s 5D at [35] above. Paragraph (b) of subs (3) renders inadmissible “any statement made by the person after suffering the harm about what he or she would have done… except to the extent… that the statement is against his or her interest”. That paragraph is commonly, and correctly, seen to render inadmissible any attempt by a plaintiff to give evidence in chief “about what he or she would have done”. But I do not think that it can be limited to evidence in chief.

53. [85]

    No doubt, Mr Giles could have asked the question. But had Mrs Jurisich said, in substance, that she would never have proceeded by way of share buy-back had she known it would cost her $600,000 in tax, her evidence would be inadmissible. It would only be an answer against her own interest that would be admissible. The effect of the paragraph may very well be that it gives cross-examining counsel a free kick: an answer supportive of the case of the plaintiff is inadmissible, but an answer against interest is not.

54. [86]

    If that is a consequence of application of the command in s 5D(3)(b), it is inherently unfair. First, it would permit cross-examining counsel to ask a question with impunity, knowing that an unfavourable answer would be inadmissible. Second, it would prevent counsel for the party being cross-examined from re-examining, if the object of the re-examination were to show that the statement said to be against interest was not so, and that in fact the subjective intention of the witness was otherwise than that statement might indicate. In those circumstances, there is much to be said for the proposition that, were a question of the kind that Mr Donaldson suggested Mr Giles could have put asked, it should have been rejected on the ground of unfairness: Evidence Act 1995 (NSW), s 135.

Ground 2

1. [87]

   Ground 2 challenges the implicit finding of the primary judge that the result of liquidation and distribution of surplus would have produced a larger net benefit for Mrs Jurisich than did the share buy-back.

2. [88]

   The conclusion of the primary judge followed essentially from his Honour’s findings on causation. His Honour said, at [58], [67]:

3. [89]

   The finding impugned by Ground 2 is implicit rather than explicit in the approach to damages that the primary judge took.

4. [90]

   Mr Giles submitted that the amount payable and paid to Mrs Jurisich on the buy-back of her shares was calculated by reference to the net assets of Cafagon as they appeared from its most recent financial statements. He submitted that it made no allowance for any taxation liabilities, for any other uncertainties, nor for the costs of winding up.

5. [91]

   Mr Giles submitted, further, that it was not open to the primary judge to rely on the assurance contained in the email of 4 October 2011. He submitted that Cafagon itself could not promise that a particular sum would be paid to Mrs Jurisich, because (in the particular circumstances of this case) a liquidator would be bound to distribute rateably to all shareholders, and would not be bound by any promise made by the company.

6. [92]

   Mr Giles submitted that if the promise were identified as one made by someone other than the company, the promisor was not identified, nor was any rational motive for making such a promise, in circumstances where (he submitted) there was some doubt as to whether liquidation would realise enough to cover the assured payment. He submitted, further, that there was no evidence as to the capacity of Olein Group to repay the full amount of the debt it owed to Cafagon.

7. [93]

   Mr Donaldson submitted that there was no basis for disregarding Cafagon’s financial statements. Those for the year ended 30 June 2011 demonstrated, on their face, a sufficiency of assets. The mother, as director, had declared that they presented a fair and true view of the company’s financial position at the balance date.

8. [94]

   Mr Donaldson noted that when Cafagon was wound up in July 2013 (after a declaration of solvency had been signed and filed), the amount distributed to the then sole shareholder, the mother, was $4,394,914.00. That could suggest net assets of about $5.7 million 18 months earlier, if one adds back the amount then paid to Mrs Jurisich.

9. [95]

   Mr Giles submitted, in reply, that a liquidation occurring 18 months after the buy-back was no real evidence of the realisable assets of the company at the date of the buy-back, even if considered in conjunction with the obvious point that the company had been able to make the agreed payment to Mrs Jurisich in exchange for her shares. Mr Giles noted that the liquidator was not the independent liquidator proposed in 2011 – Mr Nicols – but Mr Edmondson. Mr Giles submitted that Mr Edmondson would have been unlikely to undertake any detailed investigation of the affairs of Cafagon, and that the relatively modest amount charged by him suggested that he had not done so.

10. [96]

    In my view, it was open to the primary judge to rely on Mr Kell’s email of 4 October 2011 according to its terms. Mr Kell acted (and this is common ground) for both the mother and Cafagon. There is no evidence that he acted for the brother. However, for the reasons suggested at [81] above, it may be inferred from the evidence as a whole that the brother agreed to, or at the very least acquiesced in, a resolution of the matter in accordance with the proposal advanced by Mr Kell on the instructions of the mother and Cafagon.

11. [97]

    Even if the brother had neither agreed nor acquiesced, it makes no difference. I accept that Cafagon could not direct the liquidator how any surplus available on its winding up should be applied. But it was certainly open to the mother and Mrs Jurisich to agree, as between themselves, that Mrs Jurisich should receive a fixed sum and that to the extent necessary, the amount otherwise payable to the mother should be reduced. The proposal set out in Mr Kell’s email of 4 October 2011 could have been implemented, as between the mother and Mrs Jurisich, provided the surplus available on liquidation was sufficient. In this context, the surplus would need to be an amount sufficient to cover the brother’s 22.5% entitlement and the agreed sum to be paid to Mrs Jurisich.

12. [98]

    I accept that the proposal contained in Mr Kell’s email of 4 October 2011 was not of itself an offer capable of acceptance so as to give rise to a legally binding obligation on the mother. However, there is no reason to think that, had the proposal been acceptable to Mrs Jurisich, the deed would not have been amended to ensure that its terms reflected the proposal.

13. [99]

    Further, I think that it was open to the primary judge to conclude (as at least implicitly his Honour must have done) that the realisable assets of Cafagon were sufficient to enable the promise (assuming it had been embodied in a deed) to be performed. On the evidence, the company was able to pay (in round figures) $1.3m to Mrs Jurisich in December 2011, and a further $4.4m to the mother by March 2013 [37] .

14. [100]

    I add that, if the assurance in Mr Kell’s email of 4 October 2011 were translated into an obligation binding on the mother, a surplus on liquidation of as little as $1.8 million would have been sufficient. The brother’s 22.5% share would be $405,000. That would leave more than enough to pay the (hypothetically) assured sum to Mrs Jurisich. Put slightly differently, even if $4 million of the intercompany loans were irrecoverable, there would be (in that hypothetical circumstance) enough cash to ensure that Mrs Jurisich would recover the amount she wanted. And in light of the amounts actually paid, the hypothesis is quite unrealistic.

15. [101]

    In the course of submissions, it was put to Counsel that the case was really one of loss of a chance. However, that does not appear to be the way that the case was pleaded, and it is certainly not the way the case was conducted before the primary judge. Regardless, in my view, there is ample evidence to support the proposition that, had Mrs Jurisich elected to proceed by way of winding up, she would have received the agreed sum of $1,308,285.68. Further, given that the winding up that took place after she was paid out was completed by March 2013, it is unlikely that there would have been any significant delay in completing the winding up, and paying the agreed sum to Mrs Jurisich, had she agreed to proceed by way of winding up in 2011.

Ground 3: quantum

1. [102]

   Mr Giles accepted that if the Court were to come to the conclusions I have set out, there was no independent error in the amount of damages found by the primary judge.

Conclusion

1. [103]

   In my view, each of the challenges to the findings of the primary judge fails. It follows, and I propose, that the appeal should be dismissed with costs.