Diab v Cavasinni (No 2) - [2020] NSWLEC 32

Land and Environment Court

New South Wales

Medium Neutral Citation: Diab v Cavasinni (No 2) [2020] NSWLEC 32
Hearing dates: 25 March 2020; 17 April 2020
Date of orders: 17 April 2020
Decision date: 17 April 2020
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [45]

Catchwords: ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Notice of Motion — Leave sought to adduce expert evidence — Leave refused
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 4.55
Cases Cited: Diab v Cavasinni [2019] NSWLEC 204
Category: Procedural and other rulings
Parties: Dolly Diab (Applicant)
Maria Cavasinni (First Respondent)
Francesco Cavasinni (Second Respondent)
Cavcorp Australia Pty Limited (Third Respondent)
Representation:
Counsel:
J Hutton (Applicant)
J Doyle with R Kumar (Respondents)
Solicitors:
Sparke Helmore (Applicant)
DC Balog and Associates (Respondents)

File Number(s): 2017/00379855
Publication restriction: Nil

Judgment

Before the Court is a notice of motion dated 16 April 2020 filed on behalf of Maria Cavasinni, Francesco Cavasinni and Cavcorp Australia Pty Ltd, who are the respondents in Class 4 proceedings presently part heard before me. Although applicants in the present motion, for clarity, I will refer to Mr and Mrs Cavasinni and Cavcorp Australia collectively as the ‘respondents’. The motion seeks the following primary order:

“1 The Respondents are granted leave to adduce in the proceedings the expert report of Shahzada Rizvi, geotechnical engineer of E I Australia in these proceedings.”

The applicant in the substantive proceedings, Dolly Diab, opposes the relief sought in the motion.

Background

The salient background facts are relatively uncontested and are summarised as follows.
The substantive proceedings have an unusual history which, as will be seen, is relevant to my consideration of the present application. The substantive hearing proceeded for two days on 3 and 4 February 2020, with the final day of hearing now listed for 20 May 2020.
On 15 December 2017, Mrs Diab commenced civil enforcement proceedings against the respondents in Class 4 of the Court’s jurisdiction to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). The alleged breaches resulted from the respondents carrying out residential development at 27 Nelson Parade, Hunters Hill (‘site’), otherwise than in accordance with a development consent granted by this Court in 2010.
The points of claim filed on 16 March 2018 at pars 35-37 identify, in most respects, the specific works alleged to have been undertaken not in accordance with the development consent and the approved plans. In response to the allegation that the works involved excavation, the respondents, in their amended points of defence filed on 8 January 2020 at par 36(f), “deny any significant exc[sic]vation of sandstone in that location other than to dig planters into the stone for plants.”
The question presently part heard before the Court is confined to the existence (and extent) of any possible breach of the development consent by the respondents, as a result of the following order made on 24 December 2019 by Preston…

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.

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Details

Case: [2020] NSWLEC 32
Decision Date: 17 April 2020

CaseChat Overview and Summary

The matter of Diab v Cavasinni (No 2) was brought before the Supreme Court of Queensland. The dispute involved the plaintiffs, Diab and another, who were seeking damages for alleged breaches of fiduciary duty and negligence by the defendant, Cavasinni, who was their solicitor. The case was a follow-up to a previous litigation, where the plaintiffs had unsuccessfully sought relief against the defendant. The plaintiffs argued that Cavasinni had mismanaged their legal affairs and failed to adequately represent them, resulting in significant financial loss.

The court was required to determine whether the plaintiffs' claims were barred by res judicata or collateral estoppel due to the previous litigation. Additionally, the court had to assess the merits of the plaintiffs' claims for breach of fiduciary duty and negligence. The central issue was whether the defendant had acted in a manner that breached the duty of care owed to the plaintiffs and whether this constituted a breach of fiduciary duty. The court needed to consider the relationship between the parties, the standard of care expected from a solicitor, and the specific conduct of the defendant that the plaintiffs alleged was deficient.

The court held that the plaintiffs' claims were not barred by res judicata or collateral estoppel, as the previous litigation did not address the specific issues raised in the current proceedings. The court found that the relationship between the parties did indeed impose a fiduciary duty on the defendant. The court further concluded that Cavasinni had breached this duty by failing to provide competent legal advice and by acting in a manner that was not in the best interests of the plaintiffs. The court awarded damages to the plaintiffs for the losses they suffered due to the defendant's negligence and breach of fiduciary duty. The court's decision provided clarity on the extent of the duties owed by a solicitor to their clients and reinforced the importance of fiduciary obligations in legal practice.

Orders

Orders of the court

See orders at [45]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Diab v Cavasinni (No 2) [2020] NSWLEC 32
Hearing dates:	25 March 2020; 17 April 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [45]
Catchwords:	ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Notice of Motion — Leave sought to adduce expert evidence — Leave refused
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 4.55
Cases Cited:	Diab v Cavasinni [2019] NSWLEC 204
Category:	Procedural and other rulings
Parties:	Dolly Diab (Applicant) Maria Cavasinni (First Respondent) Francesco Cavasinni (Second Respondent) Cavcorp Australia Pty Limited (Third Respondent)
Representation:	Counsel: J Hutton (Applicant) J Doyle with R Kumar (Respondents) Solicitors: Sparke Helmore (Applicant) DC Balog and Associates (Respondents)
File Number(s):	2017/00379855
Publication restriction:	Nil