D'Agostino v Anderson

Case [2012] NSWCA 443

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: D'Agostino v Anderson [2012] NSWCA 443
Hearing dates:20 August 2012
Decision date: 21 December 2012
Before: Bathurst CJ at [1]; McColl JA at [27]; Macfarlan JA at [28]
Decision:

1. Appeal allowed.

2. Set aside the judgment and orders of Ashford DCJ made 6 October 2011 and 5 December 2011 and in lieu thereof (i) enter judgment for the defendant and (ii) order the plaintiffs to pay the defendant's costs.

3. Order the respondents to pay the appellant's costs of the appeal and have a Certificate under the Suitors Fund Act if eligible.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: LIMITATION - solicitor negligent in failing to highlight lapsed development consent prior to purchase - whether negligence claim statute barred - time runs from first instance of actual loss - whether loss caused at time of entering into agreement to purchase or upon local council's discovery of lapsed consent
Legislation Cited: Limitation Act 1969
Cases Cited: Argyropolous v Layton [2002] NSWCA 183
Cartledge v E Jopling & Sons Ltd [1963] AC 758
Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 529
Howell v Young (1826) 108 ER 97
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640
Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Winnote Pty Ltd (in liq) v Page [2006] NSWCA 287; (2006) 68 NSWLR 287
Category:Principal judgment
Parties: Joseph D'Agostino Trading as D'Agostino Solicitors (Appellant)
David Anderson (First Respondent)
Kerrie Anderson (Second Respondent)
Representation: Counsel:
Mr M Dicker (Appellant)
Mr M R Aldridge SC; Ms M Fraser (Respondents)
Solicitors:
Colin Biggers & Paisley (Appellant)
Brydens Law Office (Respondents)
File Number(s):2011/342084
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2011-10-06 00:00:00
Before:
Ashford DCJ
File Number(s):
4922 of 2009

Judgment

  1. BATHURST CJ: The issue for determination in this case is whether the respondents' claim against their former solicitor, the appellant, is statute barred.

  1. On 17 September 2003, the respondents (the Andersons) exchanged contracts for the sale of land and sale of a business relating to the purchase of a chiropractic clinic in Green Valley, NSW. The appellant's firm (D'Agostino) was instructed to act for the Andersons in relation to the purchase.

  1. Settlement occurred on 12 November 2003. Unbeknownst to the Andersons, development consent for the use of the dwelling as a chiropractic clinic had lapsed in or about March 2003. On 12 July 2004, the Andersons received a notice to this effect…

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AGLC
D'Agostino v Anderson [2012] NSWCA 443
Case
[2012] NSWCA 443
Decision Date

CaseChat Overview and Summary

In *D'Agostino v Anderson*, the plaintiffs (purchasers) sued the defendant (solicitor) for negligence, alleging the solicitor failed to advise them that a development consent had lapsed prior to their entering into an agreement to purchase a property. The dispute concerned whether the plaintiffs' claim was statute-barred. The matter was heard in the Court of Appeal of New South Wales, with Bathurst CJ, McColl and Macfarlan JJA presiding.

The central legal issue before the Court of Appeal was when the plaintiffs suffered actual loss for the purposes of the Limitation Act 1969 (NSW). Specifically, the court had to determine whether the loss occurred at the time the plaintiffs entered into the agreement to purchase the property, or at a later point when the local council discovered the lapsed consent. This determination was critical to establishing whether the limitation period had expired.

The Court of Appeal reasoned that actual loss, for the purposes of a negligence claim in this context, occurs when a plaintiff is first able to establish a cause of action. The court held that the plaintiffs suffered actual loss at the time they entered into the agreement to purchase the property, as it was at that point they were bound to a contract for a property with a lapsed development consent, thereby incurring a quantifiable detriment. The subsequent discovery of the lapsed consent by the council did not constitute the initial loss. Consequently, the appeal was allowed, the previous judgment for the plaintiffs was set aside, and judgment was entered for the defendant. The plaintiffs were ordered to pay the defendant's costs at first instance and the costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the judgment and orders of Ashford DCJ made 6 October 2011 and 5 December 2011 and in lieu thereof (i) enter judgment for the defendant and (ii) order the plaintiffs to pay the defendant's costs.

3. Order the respondents to pay the appellant's costs of the appeal and have a Certificate under the Suitors Fund Act if eligible.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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