District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Dinh v Nguyen [2017] NSWDC 156 Hearing dates: 23, 24 and 26 May 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant.
(2) Plaintiffs pay defendant’s costs.
(3) Liberty to apply in relation to costs.Catchwords: TORT – professional negligence – landlord provided new refrigerator in leased premises subject to a clause which excluded the landlord’s liability for its suitability and performance – whether a solicitor advising as to the terms of a lease breached his duty of care by not advising in relation to this clause – foreseeability – whether conduct fell short of the expected standard – causation – whether breach caused loss – whether the loss was in part attributable to a concurrent wrongdoer – mitigation – contributory negligence – quantum Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 5R, 35
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 236Cases Cited: Abu‑Mahmoud v Consolidated Lawyers Pty Ltd [2015] NSWSC 547
Addenbrooke Pty Ltd v Duncan (No 2) [2017] FCAFC 76
Bebonis v Angelos (2003) 56 NSWLR 127
Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 25,259
Cullen v Sema [1998] NSWCA 65
Dhaildeal v Pade [2003] NSWCA 16
Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177
Ginelle Finance Pty Ltd v Diakakis [2007] NSWSC 60
Heenan v Di Sisto [2008] NSWCA 25
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10
Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515
Lucantonio v Stichter [2014] NSWCA 5
Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362
Perpetual Trustee Company Limited & anor v Peter Ishak [2012] NSWSC 697
Pilkington v Wood [1953] Ch 770 at 777
Provident Capital Ltd v Naumovski [2011] NSWSC 270
Schacht v Thompson and Staunton t/as Staunton & Thompson Lawyers [2012] NSWSC 168
Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505
Walker v Geo H Medlicott & So (1999) 1 WLR 727
Wallace v Kam [2013] HCA 19
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Yates Property Corp Pty Ltd (in liq) v Boland (1998) 85 FCR 84Category: Principal judgment Parties: First Plaintiff: Quang Thach Dinh
Second Plaintiff: Kim Hoang Bui
Defendant: Nathan NguyenRepresentation: Counsel:
Solicitors:
Plaintiffs: Mr M Rollinson
Defendant: Mr D Lloyd
Plaintiffs: Tran Solicitors & Attorneys
Defendant: Mullane & Lindsay Solicitors
File Number(s): 2016/19660 Publication restriction: None
Judgment
Introduction
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The plaintiffs bring proceedings for negligence arising out of the retainer by the second plaintiff of the defendant as a solicitor to advise in respect of a proposed lease of a butcher shop at Dee Why in the State of New South Wales, for which the first plaintiff was to be the lessee.
The issues in the proceedings
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Details
- AGLC
- Dinh v Nguyen [2017] NSWDC 156
- Case
- [2017] NSWDC 156
- Decision Date
CaseChat Overview and Summary
In the matter of Dinh v Nguyen, the plaintiff, a tenant, alleged that the defendant, a landlord, through his solicitor, was negligent in the provision of a new refrigerator in the leased premises. The dispute came before the court which was tasked with determining whether the solicitor had breached his duty of care by not advising on a clause in the lease which excluded the landlord's liability for the suitability and performance of the refrigerator. The court had to decide the issues of foreseeability, whether the conduct fell short of the expected standard, causation, whether the breach caused the loss, whether the loss was partly attributable to a concurrent wrongdoer, mitigation, contributory negligence, and quantum.
The court examined whether the solicitor had a duty of care to advise the plaintiff on the exclusion clause, and if so, whether the solicitor's failure to do so constituted a breach of that duty. The court considered the foreseeability of harm arising from the clause, the standard of care expected of the solicitor, and the causation of the loss. The court also assessed whether the loss was partly attributable to a concurrent wrongdoer, the plaintiff's own contributory negligence, and the appropriate quantum of damages. The court concluded that the defendant's solicitor did not breach their duty of care by not advising on the exclusion clause, and that the plaintiff's loss was not caused by the defendant's negligence.
The court found in favour of the defendant and ordered that the plaintiff pay the defendant's costs. The court granted the defendant liberty to apply in relation to costs. The court held that the defendant's solicitor did not breach their duty of care, and that the plaintiff's loss was not caused by the defendant's negligence. The court also found that the plaintiff's own contributory negligence contributed to the loss, and that the appropriate quantum of damages was zero. The court ordered judgment for the defendant, and that the plaintiffs pay the defendant's costs. The court granted the defendant liberty to apply in relation to costs.
The court examined whether the solicitor had a duty of care to advise the plaintiff on the exclusion clause, and if so, whether the solicitor's failure to do so constituted a breach of that duty. The court considered the foreseeability of harm arising from the clause, the standard of care expected of the solicitor, and the causation of the loss. The court also assessed whether the loss was partly attributable to a concurrent wrongdoer, the plaintiff's own contributory negligence, and the appropriate quantum of damages. The court concluded that the defendant's solicitor did not breach their duty of care by not advising on the exclusion clause, and that the plaintiff's loss was not caused by the defendant's negligence.
The court found in favour of the defendant and ordered that the plaintiff pay the defendant's costs. The court granted the defendant liberty to apply in relation to costs. The court held that the defendant's solicitor did not breach their duty of care, and that the plaintiff's loss was not caused by the defendant's negligence. The court also found that the plaintiff's own contributory negligence contributed to the loss, and that the appropriate quantum of damages was zero. The court ordered judgment for the defendant, and that the plaintiffs pay the defendant's costs. The court granted the defendant liberty to apply in relation to costs.
Orders
Orders of the court
(1) Judgment for the defendant.
(2) Plaintiffs pay defendant’s costs.
(3) Liberty to apply in relation to costs.
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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