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Lucantonio v Kleinert

Lucantonio v Kleinert

Case [2011] NSWSC 753 20 July 2011

Negligence

Duty of Care

Misleading and Deceptive Conduct

Professional Negligence

Causation

Tort Law

Professional Negligence

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Supreme Court

New South Wales

Medium Neutral Citation: Lucantonio v Kleinert & ors [2011] NSWSC 753
Hearing dates: 3 to 14, 20 August, 18 September, 13 & 23 October, 4 December 2009
Decision date: 20 July 2011
Jurisdiction: Common Law
Before: Brereton J
Decision:
Plaintiff fails to establish liability of first, second and third defendants in negligence.

Catchwords: NEGLIGENCE - Architect - whether negligently advised that building could not be constructed in compliance with plans in DA with which property purchased by plaintiff - where advice only established to be incorrect after iterative development of plans in context of subsequent litigation and as a result of incorporation of apparently innovative design - architect did not depart from standards of practice of reasonably competent and prudent architects - no breach of duty of care.
MISLEADING AND DECEPTIVE CONDUCT - Architect's advice said to be misleading - whether opinion that building could not be constructed in compliance with plans in DA - professional opinion recognisable as such not misleading by reason of proving incorrect so long as genuinely held and a basis for it exists - opinion genuinely held - opinion not without grounds - only established to be incorrect after iterative development of plans in context of subsequent litigation as a result of incorporation of apparently innovative design - not unreasonable that architect did not discern this at time opinion proffered - no misleading and deceptive conduct.
BARRISTERS - Professional negligence - where barrister said to have breached duty of care by advising institution and subsequently not advising discontinuance of proceedings for specific performance with compensation in circumstances that purchaser had architect's advice that building could not be constructed in compliance with plans in DA with which property purchased and various conditions of contract limited purchaser's rights in that respect - where proceedings continued after judge on application to extend operation of caveat holds no serious question to be tried on basis of one condition - arguable case to contrary on that condition - where claim for specific performance with compensation very weak but proceedings included well arguable claims for misleading and deceptive conduct and for return of deposit - barrister did not in relevant respects depart from standard expected of a barrister of reasonable competence and prudence - no breach of duty of care - in any event, properly advised plaintiff would have continued proceedings to claim damages under Fair Trading Act - causation could not have been established.
SOLICITORS - Professional negligence - whether breached duty of care by advising institution and subsequently not advising discontinuance of proceedings for specific performance and compensation - solicitor receives advice from barrister that claim is arguable - not glaringly wrong - solicitor entitled to rely on advice - no breach of duty of care.
SOLICITORS - Professional negligence - solicitor for purchaser receives notice to complete from vendor - reasonably competent and prudent solicitor in such circumstances obliged to discuss courses of action and their advantages and disadvantages with client to enable…

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 Lucantonio v Kleinert

Details

AGLC: Lucantonio v Kleinert [2011] NSWSC 753
Case: [2011] NSWSC 753
Decision Date: 20 July 2011

CaseChat Overview and Summary

The case of Lucantonio v Kleinert involves a dispute over professional advice provided by an architect, a barrister, and a solicitor, and whether they were negligent or engaged in misleading or deceptive conduct. The matter was heard in the Supreme Court of New South Wales. The plaintiffs, Lucantonio, sought to have the defendants held liable for professional negligence and misleading or deceptive conduct in relation to a property purchase.

The central legal issues revolved around whether the architect, who advised that a building could not be constructed in compliance with the development approval (DA) associated with the property, was negligent. The court also had to determine if this advice constituted misleading or deceptive conduct, and whether the barrister and solicitor who provided subsequent advice were negligent in their handling of the litigation. The plaintiffs argued that the defendants' advice led them to continue with proceedings for specific performance with compensation, which they claimed was legally risky.

The court found that the architect did not breach the duty of care owed to the plaintiffs because the opinion that the building could not be constructed in compliance with the DA was genuinely held and based on existing information. The court held that an opinion, even if later proven incorrect, does not constitute misleading or deceptive conduct if it was genuinely held and based on a reasonable foundation. The barrister and the solicitor were also found not to have breached their duty of care. The court reasoned that the solicitor was entitled to rely on the barrister's advice, and that the solicitor's failure to provide timely advice in relation to the notice to complete did not result in causation of loss for the plaintiffs.

The court ordered that the plaintiffs' claims against the architect, the barrister, and the solicitor were dismissed, and that the plaintiffs were to bear their own costs of the proceedings.

Orders