Clearly fed up with the lengthy proceedings, a Supreme Court judge has said there appeared to be no end in sight to the fight between HWL Ebsworth and a client it had negligently represented two decades ago.
Justice Ian Harrison of the NSW Supreme Court opened his judgment with a reflection of how much had changed since the proceedings between HWL Ebsworth (HWLE) and former client Gregory Lindsay-Owen began in July 2016, over nine years ago.
At that time, Justice Harrison said Malcolm Turnbull returned just days earlier as prime minister of Australia in the first double dissolution election since 1987, and the United States then president Barack Obama was in the final months of his second term.
“Much has changed in Australia and the United States in the nine years since then,” Justice Harrison said.
“Much less has changed in these proceedings.”
In 2005, Lindsay-Owen retained HWLE to act for him on a joint venture contract for a Sydney land development. A year later, he claimed the firm missed a red flag in a loan agreement, which led to his alleged loss of approximately $130 million.
In February 2023, Justice Harrison found HWLE was negligent, and Lindsay-Owen was entitled to compensation for damages.
In the final paragraph of that judgment, Justice Harrison said it may be worthwhile to give consideration “to whether or not any outstanding issues upon which the parties cannot agree should be referred to an appropriate referee for determination”.
Justice Harrison said this was a “triumph of hope over experience”.
In a judgment published last May – in which Lindsay-Owen lost an argument for the reimbursement of $22.8 million – Justice Harrison said he hoped a final calculation of his loss “will then be possible”.
Fourteen months later and “the end is still not in sight”, he added.
HWLE and Lindsay-Owen have “remarkably agreed” on the remaining issues to be determined, including the taxation of pre-tax cash flows and the proper approach to the calculation of loss.
However, they have disagreed about how this should be assessed.
Justice Harrison said this was in circumstances where the remaining issues relate to “quintessentially tax accounting issues” and involve potentially difficult questions to be considered by tax experts.
“I do not qualify as such a person,” Justice Harrison said.
HWLE suggested Justice Harrison hear expert opinion and competing submissions when the matter is next before him.
Lindsay-Owen instead proposed that the issues be referred to an expert 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 judge said he preferred the latter.
“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 [HWLE] 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,” Justice Harrison said.
At the conclusion of his judgment, Justice Harrison directed the parties to provide their proposed referees or appointment mechanism.
The case: Lindsay-Owen v HWL Ebsworth Lawyers [2025] NSWSC 829
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
