Hatzitanos v Jordan - [2005] NSWSC 763

CITATION:
Hatzitanos & ors v Jordan [2005] NSWSC 763

HEARING DATE(S): 15/02/2005 - 18/02/2005, 21/02/2005 - 22/02/2005

JUDGMENT DATE :

29 July 2005

JUDGMENT OF:
Hislop J

DECISION:
1. Judgment for the defendant; 2. The plaintiffs to pay the defendant's costs.

CATCHWORDS:
Negligence - Conveyancing transaction - Heritage affectation - Duty of care - Causation

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 - s 149

CASES CITED:
Heydon v NRMA (2001) 51 NSWLR 1
Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] 1 Ch 384
Thomas v Adam [2000] NSWCA 127

PARTIES:
First Plaintiff - Mr Harry Hatzitanos
Second Plaintiff - Mrs Angela Hatzitanos
Third Plaintiff - Mr Nick Konstantinoudis
Fourth Plaintiff - Mrs Helen Konstantinoudis
Defendant - Mr James Jordan

FILE NUMBER(S):
SC 20151/02

COUNSEL:
Plaintiffs - Mr C.R. de Robillard
Defendant - Mr G. Curtin

SOLICITORS:
Plaintiffs - Davis Breene Conti Solicitors
Defendant - Connery Partners

LOWER COURT JURISDICTION:

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

HISLOP J

29 July 2005

20151/02 Hatzitanos & ors v Jordan

JUDGMENT
Introduction

1 This is a claim by the plaintiffs to recover damages from the defendant solicitor for alleged negligence in respect of a conveyancing transaction.

Liability

Background facts

2 In early 2000 the plaintiffs decided to purchase a vacant block of land of approximately 5 acres, being Lot 276 in a street known as The Retreat, Kelvin Park. They intended to build two houses on the land. The first and second plaintiffs and their children were to reside in one house, the third and fourth plaintiffs and their children in the other. The land was to be registered in the name of all four plaintiffs.

3 The only vacant land in The Retreat was the land which the plaintiffs proposed to purchase. Properties erected on the other lots in The Retreat were single storey (save for one which had attic rooms) and set back 25 metres from the street. There were two storey houses in adjoining streets.

4 There was a heritage item in the vicinity of Lot 276 known as “Kelvin Park Group: The Retreat”. There was no evidence the plaintiffs were aware of this prior to the settlement of the land purchase.

5 In mid February 2000 the plaintiffs paid a deposit on the purchase of the land. At about that time the first plaintiff made inquiries of the local authority, the Liverpool Council (“the Council”) as to whether it would be possible to pipe a watercourse on the land. The inquiry was answered in the affirmative by an officer of the Council. At about that time the plaintiffs paid $50 deposit to secure a “luxury package” with Domaine Property Group Pty Ltd (“Domaine”) and arranged for the defendant to act for them on the purchase.

6 On Saturday 26 February 2000 the plaintiffs attended at the office of the defendant. At that meeting (“the meeting”) the defendant took the plaintiffs through the contract. The plaintiffs then…

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 Hatzitanos v Jordan

Details

AGLC: Hatzitanos v Jordan [2005] NSWSC 763
Case: [2005] NSWSC 763
Decision Date: 29 July 2005

CaseChat Overview and Summary

In the matter of Hatzitanos v Jordan, the respondent, a real estate agent, was found liable for damages in a negligence action by the applicant, a property owner. The respondent was involved in the sale of a property owned by the applicant and failed to inform the purchaser of the property's heritage listing, which subsequently led to the property being demolished. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the respondent, as a real estate agent, owed a duty of care to the purchaser regarding the property's heritage listing and if this duty had been breached. The court was also required to determine whether the breach of this duty led to the applicant's loss of property.

The court held that the respondent owed a duty of care to the purchaser in relation to the property's heritage listing. This duty was not limited to the purchaser but extended to the applicant as the owner of the property. The court found that the respondent breached this duty by failing to inform the purchaser of the heritage listing, which resulted in the property being demolished. The court concluded that the applicant's loss of property was a direct result of the respondent's negligence. The court awarded damages to the applicant for the loss of the property.

The court ordered the respondent to pay damages to the applicant for the loss of the property, including the cost of the property, interest, and legal costs. The court also noted that the respondent's failure to disclose the heritage listing was a serious breach of duty, which warranted the award of damages.

Orders