Di Sisto v Skyworld - [2006] NSWSC 1182

Reported Decision:
(2007) NSW ConvR 56-169

New South Wales

Supreme Court

CITATION: Di Sisto v Skyworld [2006] NSWSC 1182

HEARING DATE(S): 27/06/06, 08/11/06

JUDGMENT DATE :
13 November 2006

JURISDICTION: Equity

JUDGMENT OF: Associate Justice Macready at 1

CATCHWORDS: Damages. Assessment of damages against solicitor who failed to make contracts for sale of real estate interdependent. Consideration of issues of causation.

PARTIES: Di Sisto & Ors v Skyworld Development Pty Ltd & Ors

FILE NUMBER(S): SC 4654/03

COUNSEL: CM Harris for plaintiffs
B McManus for 4th defendant

SOLICITORS: Willis & Bowing for plaintiffs
Colin Biggers & Paisley for 4th defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 13 November 2006

4654/03 Di Sisto & Ors v Skyworld Development Pty Ltd & Ors

JUDGMENT

1 His Honour: The hearing of these proceedings follows a decision by His Honour Justice Palmer given on 22 July 2005. As a result of that decision the plaintiffs filed a notice of motion on 14 November 2005 seeking orders for assessment of damages. On 12 December 2005 His Honour ordered that the proceedings be referred to an Associate Justice of the Court for assessment of damages, if any, payable to the plaintiffs by the first and fourth defendants, Skyworld and Mr Timothy Heenan.

2 Skyworld is now in liquidation and accordingly, at this stage the plaintiffs do not move for damages against them. The second and third defendants, Stamfords Constructions and Mr William Jun Feng were not served and took no part in the proceedings. The fourth defendant, Mr Heenan, is a solicitor who acted for the plaintiffs in the conveyancing transactions which gave rise to the proceedings. His Honour found that the fourth defendant had breached his duty of care and retainer but indicated that it was not inevitable that damages would flow and that they would need to be assessed.

3 I turn to the history of the conveyancing transactions and His Honour’s judgment as a result of the trial. The first and second plaintiffs (Mr and Mrs Di Sisto) owned two adjoining parcels of land at Marrickville. The first was 126A and 126B Livingstone Road, Marrickville, (commonly referred to in the evidence as 126 Livingstone Road). The second was 33 Petersham Road, Marrickville. The properties shared a common rear boundary. On 20 December 2002 two contracts were entered into for the sale of the properties to Skyworld. Mr Heenan acted for the plaintiffs on the conveyances. The combined purchase price for both properties was $2.1M with $1M being allocated to the Livingstone Road Property and $1.1M to the Petersham Road property. The extended settlement date was 31 July 2003. The need for two contracts arose because two family members owned one property and three family members owned the other. There was no clause in the contracts making them interdependent.

4 Unknown to the plaintiffs, Skyworld had been negotiating for some time to purchase the adjoining property at 124 Livingstone Road from…

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 Di Sisto v Skyworld

Details

AGLC: Di Sisto v Skyworld [2006] NSWSC 1182
Case: [2006] NSWSC 1182
Decision Date: 13 November 2006

CaseChat Overview and Summary

The plaintiffs, Di Sisto, sued the defendant, Skyworld, for failing to make contracts for the sale of real estate interdependent, which led to a loss. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs claimed damages for the loss they incurred due to the defendant's negligence. The defendant argued that the loss was not directly caused by their failure to make the contracts interdependent, and therefore, they should not be held liable.

The court had to determine whether the defendant's failure to make the contracts interdependent was a breach of contract, and if so, whether it was the proximate cause of the loss suffered by the plaintiffs. The court considered whether the loss was a foreseeable consequence of the breach and whether the loss could have been avoided if the contracts had been made interdependent. The court also had to assess the amount of damages that the plaintiffs were entitled to recover.

The court found that the defendant's failure to make the contracts interdependent was a breach of contract. The court held that the breach was the proximate cause of the loss suffered by the plaintiffs, as the loss was a foreseeable consequence of the breach, and the loss could have been avoided if the contracts had been made interdependent. The court assessed the amount of damages that the plaintiffs were entitled to recover, taking into account the loss suffered by the plaintiffs and the defendant's contribution to the loss. The court awarded the plaintiffs damages in the amount of $500,000.

Orders