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Contingent Exposure ≠ Compensable Loss: High Court on Timing and Proof in Solicitor’s Negligence Cases
The High Court of Australia has recently clarified when loss first arises in professional negligence claims involving defective binding financial agreements (BFAs).
In R Lawyers v Mr Daily [2025] HCA 41, the Court held that a client does not suffer compensable loss at the time a defective BFA is executed because any benefit remains contingent until separation. The limitation period therefore did not commence until the marriage broke down.
However, the Court also confirmed that the plaintiff’s only proven loss was a modest sum of wasted legal fees, and that his broader “loss of a better outcome” claim failed for want of evidence.
In this article Partner Greg Stirling, Partner Mark Brookes and Senior Associate Joel White, examine the Court’s reasoning on contingent loss, its rejection of the “damaged asset” analogy, and the evidentiary hurdles for proving a better financial outcome.
Carter Newell is certified as a Family Inclusive Workplace by Family Friendly Workplaces. The certification acknowledges workplaces that excel across five critical pillars: flexible work, parental leave, family care, family wellbeing, and leadership culture. Carter Newell is committed to nurturing a workplace where our people don’t have to choose between excelling at work and being fully present with their families. Through our Family Inclusive Workplace certification, we’re putting that belief into action.
12 August 2025
Carter Newell is pleased to have been named as a finalist across three categories in the Lawyers Weekly’s Australian Law Awards 2025. The firm is a finalist for the Insurance Team of the Year and Dispute Resolution and/or Litigation Team of the Year. We congratulate Partner Patrick Mead who is also a finalist for Litigator of the Year, following on from his recent win as Partner of the Year for Construction, Projects and Infrastructure.
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Our Planning and Environment team is proud to have assisted Malchi Holdings Pty Ltd in securing approval for the Malchi-Nine Mile Quarry located west of Rockhampton. The quarry is well positioned to make a strategic contribution to the delivery of the regionally significant Rockhampton Ring Road and Bruce Highway upgrade.
