District Court
New South Wales
Medium Neutral Citation: Kumar v Sydney Western Realty Pty Ltd & Anor (No. 2) [2021] NSWDC 446 Hearing dates: 2 – 5 August 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 265 – 268
Catchwords: TRADE AND COMMERCE – misleading or deceptive conduct – advertisement by vendor’s agent for sale of residential property – advertisement refers to expected dual income stream from two buildings on property acquired under contract for sale, one of those buildings being a granny flat – doubt about the legality of use of building as a granny flat – whether the agent was aware of such doubt – whether opinion on rental misleading or deceptive for absence of qualification – whether vendor’s agent acted as a mere conduit – whether test for causation on statutory action the same as the test under common law
TORT – professional negligence – conveyancing – omission by solicitor to advise purchaser that granny flat lacked necessary development consent from local council – content of duty of care – identification of risk of harm – whether solicitor failed to take reasonable precautions by omitting to advise client of ramifications of notice from local council that granny flat not habitable – whether factual causation – whether evidentiary onus upon solicitor to establish information could not have been obtained from local council
DAMAGES – contributory negligence – apportionment
EVIDENCE – whether Jones v Dunkel adverse inference should be drawn from failure of first defendant to call former employee as witness
Legislation Cited: Competition and Consumer Act 2010 (Cth) ss 87CB, 139B, Sch 2 — Australian Consumer Law ss 5D, 18, 20, 21, 22, 236
Civil Liability Act 2002 (NSW) ss 5B, 5D, 5E, 5O, 34
Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112
Australian Executor Trustees (SA) Ltd v Kerr [2021] NSWCA 5
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
Blatch v Archer (1774) 98 ER 969
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Campomar v Nike International (2000) 202 CLR 45
Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213
Clayton v Bant (2020) 385 ALR 41
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158
Earle v Castlemaine District Hospital [1974] VR 722
Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601
Fox v Everingham (1983) 76 FLR 170
Gates v City Mutual Life Assurance Society (1986) 160 CLR 1
Gould v Vaggelas (1985) 157 CLR 215
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- Case
- [2021] NSWDC 446
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the advertisement's reference to the granny flat constituted misleading or deceptive conduct. It also had to consider whether the agent acted as a mere conduit and if the test for causation on statutory action was the same as the test under common law. Additionally, the court had to assess the solicitor's duty of care, whether they failed to take reasonable precautions by omitting to advise the plaintiff of the ramifications of the council's notice, and whether there was factual causation. The court also examined whether the evidentiary onus was upon the solicitor to establish that the information could not have been obtained from the local council. Furthermore, the court had to consider whether a Jones v Dunkel adverse inference should be drawn from the first defendant's failure to call a former employee as a witness.
The court held that the advertisement did amount to misleading or deceptive conduct, as the agent was aware of the doubt about the legality of using the building as a granny flat. The court also found that the test for causation on statutory action was not necessarily the same as the test under common law. Regarding professional negligence, the court held that the solicitor owed a duty of care to the plaintiff and failed to take reasonable precautions by omitting to advise them of the council's notice. The court found that there was factual causation and that the evidentiary onus was upon the solicitor to establish that the information could not have been obtained from the local council. The court declined to draw an adverse inference from the first defendant's failure to call a former employee as a witness. The court ordered that the defendants pay damages to the plaintiff, with apportionment for contributory negligence.
Orders
Orders of the court
See paragraphs 265 – 268
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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