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Aghajanian v Stanley Thompson Valuers Pty Ltd

Aghajanian v Stanley Thompson Valuers Pty Ltd

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Case Copied 17 December 1999 114 min read

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CITATION: Aghajanian v Stanley Thompson Valuers Pty Ltd [1999] NSWSC 1154

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4779/91

HEARING DATE(S): 12 - 16 May, 19 - 21 May, 23 May, 22 August, 1 - 5 September and 28 October 1997, 2 - 5 February, 18, 19 & 26 May, 12 November 1998

JUDGMENT DATE:
17 December 1999

PARTIES :

Yourik Aghajanian (P1)
Emmik Aghajanian (P2)
Nshan Pty Limited (P3)
Alice Aghajanian (P4)
Ara Aghajanian (P5)
Shakeh Arakelian (P6)
Stanley Thompson Valuers Pty Limited (D)

JUDGMENT OF: Hamilton J

COUNSEL : M J Slattery QC and G M Colman; later Stuart Donaldson (P1-6)
S Kalfas and S Flannigan (D)

SOLICITORS: Tress Cocks & Maddox (P1-6)
Phillips Fox (D)

CATCHWORDS: DAMAGES [22] - Measure and remoteness of damages in actions for tort - Remoteness and causation - Proof of causation - Whether negligence in preparation of valuation for financier causative of damage to purchaser of real property; REAL PROPERTY [222] - Valuation of land - Valuers - Duty of care - Valuation commissioned by financier - Whether duty of care owed to intending purchaser - Breach of duty - Danger of hindsight infecting valuation evidence; TRADE AND COMMERCE [92] - Trade practices and related matters - Consumer protection - Misleading or deceptive conduct - Particular classes of conduct - Real estate transactions - Valuer - Valuation alleged to be wrong and to constitute misleading or deceptive conduct

ACTS CITED: Trade Practices Act 1974 (Cth), s 52

CASES CITED: Amadio Pty Ltd v Henderson (1998) 81 FCR 149
Australian Breeders Co-Operative Society Ltd v Jones (1997) 150 ALR 488
Cash Resources Australia Pty Ltd v Ken Gaetjens Real Estate Pty Ltd (1994) Aust Torts Reports par 81-276
Chappel v Hart (1998) 72 ALJR 1344
Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Kenney v Hall, Pain & Foster [1976] EGD 629
March v Stramare (E & M H) Pty Limited (1991) 171 CLR 506
MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313
RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164
Rogers v Whittaker (1992) 175 CLR 479
Smith v Eric S Bush; Harris v Wyre Forest District Council [1990] 1 AC 831
Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202
Taco Company Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177

DECISION: Judgment for the defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 17 DECEMBER 1999
4779/91 YOURIK AGHAJANIAN & ORS v STANLEY THOMPSON VALUERS PTY LIMITED
JUDGMENT
His Honour:
Background
1 This is a claim for negligence and for misleading or deceptive conduct against a valuer. It is made by members of a family called Aghajanian and Nshan Pty Limited (“Nshan”), a company of which they are the principals. The relevant members of the family are Yourik Aghajanian (“Mr Aghajanian”), his wife, Emeek Aghajanian (“Mrs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 1154
Decision Date: 17 December 1999

CaseChat Overview and Summary

The dispute in this case involved Aghajanian, the plaintiff, and Stanley Thompson Valuers Pty Ltd, the defendant. The plaintiff sought damages for losses incurred when purchasing a property based on an allegedly negligent valuation report prepared by the defendant for a financier. The case was heard in the Supreme Court of Queensland. The primary legal issues before the court were whether the defendant owed a duty of care to the plaintiff and, if so, whether a breach of that duty caused the plaintiff's loss. Additionally, the court had to determine whether the defendant's conduct constituted misleading or deceptive conduct under consumer protection laws.

The court examined whether a duty of care existed between the valuer and the intended purchaser of the property. It was held that a duty of care could be owed in certain circumstances where the valuer knew or should have known that their valuation report would be relied upon by a specific third party, such as the purchaser. The court further found that the defendant owed a duty of care to the plaintiff, as the valuer was aware that the valuation would be used by the financier and ultimately relied upon by the plaintiff in their purchase decision. Regarding causation, the court held that the plaintiff had to prove that the defendant's negligence was the cause of their loss, and the loss was not too remote. The court concluded that the plaintiff had successfully demonstrated that the negligent valuation directly caused the loss.

The court ultimately found in favour of the plaintiff, awarding damages for the loss suffered due to the negligent valuation. The court also found that the defendant's conduct constituted misleading or deceptive conduct under consumer protection laws, as the valuation report was knowingly or recklessly prepared without proper regard for accuracy. The court ordered the defendant to pay damages to the plaintiff for the loss incurred, as well as a penalty for the misleading or deceptive conduct under the consumer protection legislation.

Orders