Lam & Anor. v Margiotta - [2002] NSWCA 233

CITATION: Lam & Anor. v. Margiotta & Anor. [2002] NSWCA 233

FILE NUMBER(S): CA 40746/01

HEARING DATE(S): 15 July 2002

JUDGMENT DATE:
15 July 2002

PARTIES :

Buu Bieu Lam and Anor. - appellant
Vincent Margiotta & Anor. - respondents

JUDGMENT OF: Giles JA at 1, 57-62, 65-68; Hodgson JA at 2-56; Davies AJA at 63

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC9013/95

LOWER COURT
JUDICIAL OFFICER : Sidis DCJ

COUNSEL: Mr. M. Broun QC for appellants
Mr. J. Stevenson for respondents

SOLICITORS: William Chan & Co. for appellants
Blake Dawson Waldron for respondents

CATCHWORDS: LEGAL PRACTITIONERS - Solicitors - Negligence advice - Whether causative of loss - Whether error by primary judge shown. ND.

CASES CITED:
Berry v. Kanakis [2002] NSWCA 68
Rosenberg v. Perciva (2001) 178 ALR 57
State Rail Authority (NSW) v. Earthline Constructions Pty. Ltd. (1999) 73 ALJR 306

DECISION: Appeal dismissed with costs.

CA 40746/01
DC 9013/95

GILES JA
HODGSON JA
DAVIES AJA
Monday 15 July 2002

LAM & ANOR. V. MARGIOTTA & ANOR.

Judgment

1 GILES JA: As foreshadowed before lunch, we are in a position to deal with the matter immediately and I would ask Hodgson JA to give the first reasons.

2 HODGSON JA: On 5-9 and 21 March 2001, Sidis DCJ heard proceedings in which the appellants, Mr Buu Bieu Lam and Ms Luk Muoi Ly, claimed damages against the first respondent, Vincent Margiotta, a solicitor, and the second respondents, Margiotta Solicitors, who were employers of the first respondent for breaches of contract, negligence and misrepresentations in connection with the purchase by the appellants of a bakery business at Woy Woy.

3 On 6 September 2001, Sidis DCJ gave judgment in the proceedings and ordered that there be a verdict for the respondents and that the appellants pay the respondents’ costs. The appellants appeal from those orders.

4 I will begin with an outline of the factual circumstances.

5 Mr Lam was born in Cambodia and Ms Ly was born in Vietnam. They each came to Australia in 1979. They met in Australia and were married in 1985.

6 On 12 July 1990 Mr Lam saw an advertisement in the Sydney Morning Herald advertising a bread and cake shop at Woy Woy for a price of $117,000, also stating “$$7500 T/O, long lease, $2000 net profit, no opposition”. Ms Ly obtained the telephone number of one of the proprietors, Peter Nugent, and telephoned him on 13 July and arranged to meet him that day.

7 At the meeting, Mr Nugent wrote and signed a document which read as follows:

Average weekly takings for the past 6 months for Deepwater Hot Bake = $7814.75

Weekly wages average over this period $1427.75 (including casuals)

Deepwater Hot Bake
Woy Woy
13/7/90

Accountants figures will be available at the end of next week.

8 On 14 July the appellants visited the shop, which was in Deepwater Plaza at Woy Woy, the managers of that centre being Byvan Management NSW Pty…

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 Lam & Anor. v Margiotta

Details

AGLC: Lam and Anor. v Margiotta [2002] NSWCA 233
Case: [2002] NSWCA 233
Decision Date: 15 July 2002

CaseChat Overview and Summary

The appeal concerned a claim of negligence brought by the plaintiffs, Lam and another, against their former solicitor, Margiotta. The dispute arose from advice provided by the solicitor regarding a property transaction. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the solicitor's advice was negligent and, if so, whether that negligence caused the loss suffered by the plaintiffs. The court was also required to consider whether any errors had been made by the primary judge in their determination of these issues.

The Court of Appeal upheld the primary judge's findings. The court reasoned that the solicitor's advice, when viewed in its entirety and in the context of the information available at the time, did not fall below the standard of care expected of a reasonably competent solicitor. Consequently, the court found that the plaintiffs had not established negligence on the part of the solicitor, and therefore, the issue of causation of loss did not arise.

The appeal was dismissed, and the plaintiffs were ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with 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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CITATION:	Lam & Anor. v. Margiotta & Anor. [2002] NSWCA 233
FILE NUMBER(S):	CA 40746/01
HEARING DATE(S):	15 July 2002
JUDGMENT DATE:	15 July 2002
PARTIES :	Buu Bieu Lam and Anor. - appellant Vincent Margiotta & Anor. - respondents
JUDGMENT OF:	Giles JA at 1, 57-62, 65-68; Hodgson JA at 2-56; Davies AJA at 63

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC9013/95
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	Mr. M. Broun QC for appellants Mr. J. Stevenson for respondents
SOLICITORS:	William Chan & Co. for appellants Blake Dawson Waldron for respondents
CATCHWORDS:	LEGAL PRACTITIONERS - Solicitors - Negligence advice - Whether causative of loss - Whether error by primary judge shown. ND.
CASES CITED:	Berry v. Kanakis [2002] NSWCA 68 Rosenberg v. Perciva (2001) 178 ALR 57 State Rail Authority (NSW) v. Earthline Constructions Pty. Ltd. (1999) 73 ALJR 306
DECISION:	Appeal dismissed with costs.