CITATION: Dansar Pty Ltd v Pagotto [2008] NSWSC 112 HEARING DATE(S): 12 and 13 February 2008
JUDGMENT DATE :
20 February 2008JUDGMENT 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 158PARTIES: 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 LISTHARRISON J
20 February 2008
JUDGMENT20177 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
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…
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- AGLC
- Dansar Pty Ltd v Pagotto [2008] NSWSC 112
- Case
- [2008] NSWSC 112
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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