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Dansar Pty Ltd v Pagotto

Dansar Pty Ltd v Pagotto

Case [2008] NSWSC 112 20 February 2008

Negligence

Judicial Review

Legitimate Expectation

Procedural Fairness

Damages

Administrative Law

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CITATION: Dansar Pty Ltd v Pagotto [2008] NSWSC 112

HEARING DATE(S): 12 and 13 February 2008

JUDGMENT DATE :
20 February 2008

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiffs in such sum as is agreed by counsel for the parties having regard to the terms of par [97] of these reasons for judgment.
2. Order the defendants to pay the plaintiffs costs.

CATCHWORDS: NEGLIGENCE - solicitor and client - deemed refusal of plaintiffs' application to local authority to develop land - appeal against refusal to Land and Environment Court - clause 45 of Byron Shire LEP - Council required to be satisfied about prior adequate arrangements for provision of sewerage services to the land - condition precedent to approval - appeal flawed from the outset - plaintiffs never advised of that fact by defendants - further appeal pursuant to s 56A of the Environmental Planning and Assessment Act 1979 against Commissioner's decision - appeal limited the questions of law - decision of Commissioner a question of fact - second appeal flawed from the outset - plaintiffs never advised of that fact by defendants - application to Supreme Court for prerogative relief in respect of Commissioner's original decision - no jurisdiction - proceedings flawed from the outset - plaintiffs never advised of that fact by the defendants - reliance by defendants upon defence of advocates immunity - no circumstances found for immunity to apply - damages -plaintiffs entitled to recover wasted legal costs and expenses of futile proceedings

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CATEGORY: Principal judgment

CASES CITED: Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209
Codlea v Byron Shire Council [1999] NSWCA 399; 105 LGERA 370
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Donellan v Watson (1990) 21 NSWLR 335
Giannarelli v Wraith [1088] HCA 52; (1988) 165 CLR 543
Ian McKay v Byron Shire Council [2000] NSWLEC 29
Symonds v Vass [2007] NSWSC 1274
Vaughan v Byron Shire Council [No 2] [2002] NSWLEC 158

PARTIES: Dansar Pty Ltd (First Plaintiff)
John Bernard Vaughan (Second Plaintiff)
Antonio B Pagotto, John L Walker, Geoffrey R Manion and David R Wolfe, trading as Walters Solicitors (Defendants)

FILE NUMBER(S): SC 20177 of 2005

COUNSEL: D L Davies SC (Plaintiffs)
D L Ronzani (Defendants)

SOLICITORS: Norman Waterhouse (Plaintiffs)
Ebsworth & Ebsworth (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

HARRISON J

20 February 2008

20177 of 2005 Dansar Pty Ltd and John Bernard Vaughan v Antonio B Pagotto, John L Walker, Geoffrey R Manion and David R Wolfe, trading as Walters Solicitors
JUDGMENT

Introduction

1 On 19 February 2000 Dansar Pty Ltd ("the first plaintiff") purchased a property at 7 Cavvanbah Street, Byron Bay ("the property"). On 6 February 2001 the first plaintiff lodged a development application in respect of the property with the Byron Shire Council ("the Council"). The property was at all relevant times subject…

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 Dansar Pty Ltd v Pagotto

Details

AGLC: Dansar Pty Ltd v Pagotto [2008] NSWSC 112
Case: [2008] NSWSC 112
Decision Date: 20 February 2008

CaseChat Overview and Summary

In Dansar Pty Ltd v Pagotto, the plaintiffs sought damages against the defendants, who were their solicitors, for the defendants' failure to advise them of the insufficiency of their planning appeal, which led to wasted legal costs and expenses. The dispute involved the interpretation of the Environmental Planning and Assessment Act 1979 and the Local Environment Plan (LEP) of Byron Shire. The case was heard in the Supreme Court of New South Wales, Equity Division.

The primary legal issues before the court were whether the defendants, as solicitors, owed a duty of care to the plaintiffs to ensure their appeal was properly framed and whether the plaintiffs' claims for wasted costs and expenses were justified. The court also considered whether the defendants were entitled to rely on the defence of advocates immunity and whether the plaintiffs were entitled to recover their legal costs and expenses incurred due to the defendants' alleged negligence.

The court found that the defendants had indeed failed to properly advise the plaintiffs regarding the insufficiency of their appeal, which led to wasted legal costs and expenses. The court held that the defendants owed a duty of care to the plaintiffs in this regard. The court also found that the appeal was flawed from the outset due to the defendants' failure to provide proper advice. Furthermore, the court rejected the defendants' reliance on the defence of advocates immunity, as no circumstances were found that would justify its application. Finally, the court held that the plaintiffs were entitled to recover their wasted legal costs and expenses.

The court ordered that the plaintiffs were entitled to recover their wasted legal costs and expenses incurred due to the defendants' failure to provide proper advice. The court did not grant any other relief sought by the plaintiffs.

Orders