Berry v Kanakis - [2002] NSWCA 68

Reported Decision:
(2002) NSW ConvR 56-022

New South Wales

Court of Appeal

CITATION: Berry v Kanakis & Ors [2002] NSWCA 68

FILE NUMBER(S): CA 40255/01

HEARING DATE(S): 6 and 7 February 2002

JUDGMENT DATE:
18 March 2002

PARTIES :

Terry Berry - Appellant
Lucas Jupiter Kanakis & Ors (trading as Diamond Peisah & Co) - Respondents

JUDGMENT OF: Meagher JA at 1; Giles JA at 2; Ipp AJA at 48

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 5200/99

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

COUNSEL: P Biscoe QC & M Zammett - Appellant
J Simpkins SC & S Kerr - Respondents

SOLICITORS: Woods & Day - Appellant
Collin Biggers & Paisley - Respondents

CATCHWORDS: NEGLIGENCE - causation - solicitors acting for purchaser of house - failed to advise client to obtain a building report - whether client relied on solicitors in that respect - whether client would have proceeded without building report even if so advised - trial judge found she did not rely and would have proceeded - question of fact - no error shown. ND.

CASES CITED:
Bell v Thompson (1934) 34 SR (NSW) 431;
Carr v Baker (1936) 36 SR (NSW) 301;
Colfield v Waterloo Case Co Ltd (1924) 34 CLR 363;
Gould v Vaggellas (1985) 157 CLR 215;
Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242;
Jones v Dunkel (1959) 101 CLR 298;
Rosenberg v Percival (2001) 178 ALR 577.

DECISION: Appeal dismissed with costs.

CA 40255/01
DC 5200/99

MEAGHER JA
GILES JA
IPP AJA

Monday 18 March 2002

BERRY v KANAKIS & ORS

Judgment

1 MEAGHER JA: I agree with Giles JA.

2 GILES JA: In March-April 1996 the respondents acted as the appellant’s solicitors on the purchase of a house at 80 Chaleyer Street, Rose Bay (“the property”). In February 1998 a termite infestation at the property was discovered. The termites had not been present in March-April 1996, but the appellant was advised that inadequate termite shielding, inadequate ventilation and dirt and rubbish left beneath the house had contributed to termite entry. Later in 1998 the appellant had the house inspected by a building consultant, who reported on a number of defects and made recommendations for rectification. Another building report by an architect in mid-1999 identified more extensive defects.

3 In proceedings brought in the District Court in 1999 the appellant alleged against the respondents breach of contract and breach of duty of care in acting on the purchase of the property. (Other allegations were directed to breach of contract and breach of duty of care in prosecuting the appellant’s rights against the vendor of the property, and there were further allegations apparently intended to invoke the Fair Trading Act 1987. By the time of the appeal only the common law claims in relation to the purchase of the property were in question.) The appellant alleged that as a result of the breach of contract…

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.

Continue reading Berry v Kanakis

Details

AGLC: Berry v Kanakis [2002] NSWCA 68
Case: [2002] NSWCA 68
Decision Date: 18 March 2002

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the purchaser of a house against her solicitors. The purchaser alleged that the solicitors had failed to advise her to obtain a building report for the property. The central dispute revolved around whether the purchaser had relied on her solicitors in this regard and, crucially, whether she would have proceeded with the purchase even if she had been advised to obtain a building report. The matter was heard in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal were whether the trial judge had erred in finding that the purchaser did not rely on her solicitors' advice concerning a building report and whether the trial judge had erred in finding that the purchaser would have proceeded with the purchase of the property regardless of whether she had been advised to obtain such a report. These issues were fundamentally questions of fact.

The Court of Appeal found no error in the trial judge's findings of fact. The trial judge had concluded that the purchaser had not relied on her solicitors in relation to obtaining a building report and that she would have purchased the property even if she had been advised to do so. The Court of Appeal held that these were findings of fact that were open to the trial judge on the evidence presented. As no error of law or fact was demonstrated, the appeal was dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Berry v Kanakis & Ors [2002] NSWCA 68
FILE NUMBER(S):	CA 40255/01
HEARING DATE(S):	6 and 7 February 2002
JUDGMENT DATE:	18 March 2002
PARTIES :	Terry Berry - Appellant Lucas Jupiter Kanakis & Ors (trading as Diamond Peisah & Co) - Respondents
JUDGMENT OF:	Meagher JA at 1; Giles JA at 2; Ipp AJA at 48

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5200/99
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	P Biscoe QC & M Zammett - Appellant J Simpkins SC & S Kerr - Respondents
SOLICITORS:	Woods & Day - Appellant Collin Biggers & Paisley - Respondents
CATCHWORDS:	NEGLIGENCE - causation - solicitors acting for purchaser of house - failed to advise client to obtain a building report - whether client relied on solicitors in that respect - whether client would have proceeded without building report even if so advised - trial judge found she did not rely and would have proceeded - question of fact - no error shown. ND.
CASES CITED:	Bell v Thompson (1934) 34 SR (NSW) 431; Carr v Baker (1936) 36 SR (NSW) 301; Colfield v Waterloo Case Co Ltd (1924) 34 CLR 363; Gould v Vaggellas (1985) 157 CLR 215; Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242; Jones v Dunkel (1959) 101 CLR 298; Rosenberg v Percival (2001) 178 ALR 577.
DECISION:	Appeal dismissed with costs.