Capebay Holdings Pty Ltd v Sands - [2002] WASC 287

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CAPEBAY HOLDINGS PTY LTD -v- MARKS HEALY SANDS [2002] WASC 287

CORAM: PULLIN J

HEARD: 2-4 & 7-10 OCTOBER 2002

DELIVERED : 4 DECEMBER 2002

FILE NO/S: CIV 1160 of 1999

BETWEEN: CAPEBAY HOLDINGS PTY LTD
Plaintiff
AND
MARKS HEALY SANDS
Defendant

Catchwords:

Negligence - Legal practitioner - Alleged breach of contract and duty of care - Solicitor acting on land transaction for purchaser - Encroachment of buildings on neighbouring land - Whether solicitor advised of the encroachment - Whether plaintiff knew of encroachment - Whether plaintiff knew of the adverse financial consequences of encroachment - Whether solicitor advised of adverse financial consequences - Whether failure to advise caused any loss

Legislation:

Property Law Act 1969, s 122

Result:

Plaintiff's claim dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr K E Yin
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: Murcia Pestell Hillard
Defendant: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Astley v Austrust Ltd (1999) 197 CLR 1
Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Fox v Everingham & Howard (1983) 76 FLR 170
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Hill v Van Erp (1997) 188 CLR 159
Hudson v Cripps [1896] 1 Ch 265
Midland Bank v Hett Stubbs & Kemp [1979] Ch 384
Miller v Emcer Products [1956] 1 Ch 304
Montague Mining Pty Ltd v Gore [1998] FCA 1334
Plenty v Dillon (1991) 171 CLR 635
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434

Case(s) also cited:

Chappel v Hart (1998) 195 CLR 232
Crabb v Arun District Council [1976] Ch 179
Delta Corp Ltd v Davies [2002] WASCA 125
Dillwyn v Llewelyn (1862) 4 DeGF&J 517
Erley Pty Ltd v Gunzburg Nominees Pty Ltd [1998] WASCA 75
F v R (1983) 33 SASR 189
Gesmundo v Anastasiou (1975) 1 BPR 9297
Halliday v Nevill (1984) 155 CLR 1
Hawkins v Clayton (1988) 164 CLR 539
Henville v Walker (2001) 182 ALR 37
Jetcity Pty Ltd v Yenald Nominees Pty Ltd [1999] WASC 1042
Morris v Thomas (1991) 73 LGRA 164
Ramsden v Dyson (1866) LR 1 HL 129
Re Melden Homes No 2 Pty Ltd's Land [1976] Qd R 79
Westcoast Clothing Co Pty Ltd v Freehill, Hollingdale & Page (1999) A Tort Rep 81-518

PULLIN J: The plaintiff sues its former solicitors, the defendant, for damages for alleged negligent omissions to provide advice and for negligent advice, which negligent acts and omissions are said to amount to a breach of contract and a breach of a general duty to exercise reasonable care and skill.

Summary

The plaintiff bought land known as the Wembley Shopping Centre land ("WSC land"). This land is sometimes referred to as the "Piazza" or the "Wembley Piazza". The plaintiff says that it did not…

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: [2002] WASC 287
Decision Date

CaseChat Overview and Summary

The plaintiff, Capebay Holdings Pty Ltd, brought a claim against its former solicitors, the defendant, for damages for alleged negligent omissions to provide advice and for negligent advice. The plaintiff claimed that the defendant was negligent in not advising the plaintiff of the encroachment of some buildings on neighbouring land and the adverse financial consequences of such an encroachment, and in giving negligent advice. The plaintiff claimed damages for the loss of an opportunity to purchase the neighbouring land and the additional amount it paid to purchase it, and for loss of income from the lease of the encroaching buildings. The defendant denied liability and counterclaimed for unpaid legal fees. The case was heard by Pullin J in the Supreme Court of Western Australia, who dismissed the plaintiff's claim. The plaintiff's claim was dismissed because the plaintiff knew of the encroachment and the adverse financial consequences of purchasing the property without the neighbouring land. The plaintiff's director, Mr Lee, had been advised of the encroachment before the plaintiff contracted to purchase the property, and knew of the financial consequences. The defendant's advice that the plaintiff could "walk away" from the contract if the neighbouring land was not purchased was not negligent. The plaintiff would not have acted any differently if it had been advised of the consequences of the encroachment, because it knew of them. The plaintiff's claim for damages was dismissed.

Orders