Cohen v Wilson Dowd - [2000] TASSC 174

[2000] TASSC 174

CITATION: Cohen & Anor v Wilson Dowd [2000] TASSC 174

PARTIES:  COHEN, Barry Louis
  COHEN, Robyn Jeanette
  v

WILSON DOWD

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 127/1999
DELIVERED ON:  14 December 2000
DELIVERED AT:  Hobart
HEARING DATE:  29, 30 August 2000
JUDGMENT OF:  Cox CJ, Crawford and Slicer JJ

CATCHWORDS:

Contracts - General contractual principles - Discharge, breach and defences to action for breach - Repudiation and non-performance - Election and rescission - Loss or waiver of right to rescind - General principles of doctrine of election - Whether there were acts amounting to an unequivocal election to affirm the contract.

Sargent v ASL Developments Ltd (1974) 131 CLR 634, applied.
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, referred to.
Aust Dig Contracts [136]

Conveyancing - Relationship of vendor and purchaser - Matters arising between contract and conveyance - Waiver of conditions - Contract conditional upon purchaser effecting a contemporaneous settlement of another contract - Whether election between inconsistent rights - Purchaser in possession and making efforts to complete.

Sargent v ASL Developments Ltd (1974) 131 CLR 634, applied.
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, referred to.
Aust Dig Contracts [40]

REPRESENTATION:

Counsel:
             Appellants:  G L Sealy
             Respondent:  P L Jackson
Solicitors:
             Appellants:  Piggott Wood & Baker
             Respondent:  Griffits & Jackson

Judgment Number: [2000] TASSC 174
Number of paragraphs: 43

Serial No 174/2000
File No FCA 127/1999

COHEN & ANOTHER v WILSON DOWD

REASONS FOR JUDGMENT FULL COURT

COX CJ
CRAWFORD J
SLICER J
14 December 2000

Orders of the Court:

Appeal allowed.

Judgment for the respondent against the appellants set aside.

Judgment entered for the appellants against the respondent for damages to be assessed.

Case remitted to the trial judge for assessment of damages.

Serial No 174/2000
File No FCA 127/1999

COHEN & ANOTHER v WILSON DOWD

REASONS FOR JUDGMENT FULL COURT

COX CJ
14 December 2000

The appellants sought damages against the respondent firm of solicitors for negligence and/or breach of contract. Specifically they claimed that advice given by Mr Dowd of the respondent firm on 12 January 1995 was incorrect and was given negligently. The learned trial judge found that the advice given by Mr Dowd had been given by him without his having made any effort to research the relevant law, but that fortuitously the advice was correct. The appellants challenge that conclusion.

In 1994, the appellants owned a house property at Howrah which they contracted to sell to a Mr How in November 1994. It was an unconditional contract for the sale of the property for $145,000 and was due for completion on 4 December 1994. A few days after agreeing to this sale, the appellants found a house at Montrose which was being completed by the owner/builder, Mr Berry. They agreed to purchase the property for $120,000. Clause 3 of that contract also provided for completion on 4 December 1994. This day…

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 Cohen v Wilson Dowd

Details

AGLC: Cohen v Wilson Dowd [2000] TASSC 174
Case: [2000] TASSC 174
Decision Date: 14 December 2000

CaseChat Overview and Summary

The appellants, Barry Louis Cohen and Robyn Jeanette Cohen, appealed against a judgment of the trial judge which dismissed their action against the respondent, Wilson Dowd, a solicitor. The appellants sought damages for professional negligence and/or breach of contract. They claimed that advice given by Mr Dowd on 12 January 1995 was incorrect and was given negligently. The learned trial judge found that the advice given by Mr Dowd had been given by him without his having made any effort to research the relevant law, but that fortuitously the advice was correct. The appellants challenged that conclusion. The Full Court allowed the appeal and set aside the judgment of the trial judge. The Full Court found that the advice given by Mr Dowd was not sound and his conduct in giving it without any attempt at research amounted to a breach of the duty of care and of the contract of retainer. It was causative of loss which the appellants had the right to have assessed. Judgment was entered for the appellants against the respondent for damages to be assessed. The case was remitted to the trial judge for assessment of damages.

Orders