D'Agostino v Anderson

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.