TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  508/1997
DELIVERED ON:  12 November 1999
DELIVERED AT:  Hobart
HEARING DATES:  20, 21, 23 September, 8 November 1999
JUDGMENT OF:  Underwood J
CATCHWORDS:

Professions and trades - Lawyers - Duties and liabilities to client - Transactions and proceedings on behalf of clients - Exercise of skill - Liability for negligence - What constitutes negligence - Failure to take any instructions or consider any law - Waiver of condition in a contract - Election.

Central Trust Co v Rafuse (1986) 31 DLR (4th) 481; Vulic v Bilinsky [1983] 2 NSWLR 472, applied.

Aust Dig Professions and Trades [85]

Contracts - General contractual principles - Discharge, breaches 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 - What constitutes an election.

Sargent v ASL Developments Ltd (1974) 131 CLR 634; Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622, applied.
Commonwealth v Verwayen (1990) 170 CLR 394, referred to.

Aust Dig Contracts [136]

Estoppel - Estoppel in pais - Equitable estoppel - General principles - The nature of the doctrines of waiver and election.
Commonwealth v Verwayen (1990) 170 CLR 394, applied.
Aust Dig Estoppel [32]
REPRESENTATION:

Counsel:
             Plaintiffs:  G L Sealy
             Defendant:  P L Jackson
Solicitors:
             Plaintiffs:  Piggott Wood & Baker
             Defendant:  Griffits & Jackson

Judgment Number: [1999] TASSC 123
Number of Paragraphs: 81

Serial No 123/1999
File No 508/1997

BARRY LOUIS COHEN and ROBYN JEANETTE COHEN v
WILSON DOWD (a firm)

REASONS FOR JUDGMENT UNDERWOOD J

12 November 1999

The plaintiffs' claim against the defendant firm of solicitors is for damages for negligence and/or breach of contract. The plaintiffs' allegation is that the solicitors acted negligently in the provision of legal advice with respect to a contract that they had entered into for the purchase of a house at Jasanda Drive, Montrose.

Background

In 1994, the plaintiffs were living at 3 Vela Street, Howrah. They had lived there for the previous 14 years. At the end of 1993, the plaintiffs sold a delicatessen business that they carried on in the Bank Arcade, Hobart. After the sale of this business, the plaintiffs were left owing $12,000, the repayment of $8,000 of which was secured by way of mortgage over their Vela Street home.

For some time prior to the sale of the delicatessen, the plaintiffs had been trying to sell their property at Vela Street. The overheads on the house were high and the living area was no longer suitable for the plaintiffs' needs. Following the sale of the delicatessen, both plaintiffs were out of work for a long time and the need to sell Vela Street became more acute. The plan was to use the…

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 [1999] TASSC 123
Case: [1999] TASSC 123
Decision Date: 12 November 1999

CaseChat Overview and Summary

The plaintiffs, Barry and Robyn Cohen, brought a claim against the defendant firm of solicitors, Wilson Dowd, for damages for negligence and/or breach of contract. The plaintiffs alleged that the solicitors acted negligently in providing legal advice with respect to a contract that the plaintiffs had entered into for the purchase of a house at Jasanda Drive, Montrose. The primary issues in the case were whether the solicitors breached their duty of care and contract of retainer by failing to provide appropriate advice to the plaintiffs regarding the conditions of the contract and the legal implications of taking possession of the property. The court held that while the solicitors did fail to provide the necessary advice, the plaintiffs had elected to perform the contract by remaining in possession of the property, thereby waiving their right to rescind the contract. As a result, the plaintiffs suffered no damage from the solicitors' failure to advise them correctly.

The court found that the plaintiffs did not seek advice from the solicitors on 23 or 24 November 1994, and/or 2 December 1994, regarding the implications of taking possession of the property prior to settlement. Furthermore, the court found that the plaintiffs had elected to perform the contract by remaining in possession of the property after the right to rescind arose, thereby waiving their right to rescind the contract. Consequently, the plaintiffs had suffered no damage as a result of the solicitors' failure to advise them correctly. The court also found that the plaintiffs were not entitled to amend their statement of claim to include a new allegation of negligence regarding the solicitors' failure to advise them on the implications of remaining in possession of the property after a certain date. The court held that such an amendment would cause the defendant grave prejudice as the issue was never in controversy between the parties and no evidence was led on the matter.

Orders