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Lucantonio v Kleinert

Lucantonio v Kleinert

Case [2009] NSWSC 853 11 August 2009

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CITATION: Lucantonio v Kleinert [2009] NSWSC 853

HEARING DATE(S): 10 August 2009

JURISDICTION: Common Law

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 11 August 2009

DECISION: Tender of report refused. Leave to permit supplementary evidence to be called refused.

CATCHWORDS: EVIDENCE – Expert evidence – professional negligence – admissibility of evidence of what a prudent practitioner would have done in relevant circumstances – necessity for additional or special qualification – necessity for relevant circumstances to be specified – necessity for witnesses’ rationale to be articulated

LEGISLATION CITED: (NSW) Conveyancing Act 1919 s 55(2A)
(NSW) Evidence Act 1995 s 135
(NSW) Fair Trading Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: Fox v Everingham & Howard (1983) 76 FLR 170
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705
MB v Protective Commissioner [2000] NSWSC 718, (2000) 217 ALR 631
Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384
O’Brien v Gillespie (1997) 41 NSWLR 549
Permanent Trustee Australia Limited v Boulton Permanent Trustee Australia Limited (1994) 33 NSWLR 735
Rebelais Pty Ltd v Cameron [1993] ANZ ConvR 457

PARTIES: Dean Lucantonio as trustee for the Lucantonio Family Trust (plaintiff)
Jaime Kleinert (first defendant/XC1 first cross-defendant/XC2 cross-claimant)
Otto Stichter (second defendant/XC1 cross-claimant/XC2 first cross-defendant)
Darryl Leslie Warren (third defendant/XC1 second cross-defendant/XC2 second cross-defendant)

FILE NUMBER(S): SC 20351/04

COUNSEL: Mr G Laughton SC w Ms D Christofis (plaintiff)
Mr R Darke SC (first defendant)
Mr G Curtin (second defendant)
Mr M Ashhurst SC (third defendant)

SOLICITORS: Gells Lawyers (plaintiff)
Kennedys Lawyers (first defendant)
DLA Phillips Fox Lawyers (second defendant)
McCabe Terrill Lawyers (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Tuesday 11 August 2009

20351/04 Dean Lucantonio as Lucantonio Family Trust v Jaime Kleinert & 2 Ors
JUDGMENT (ex tempore)

1 HIS HONOUR: In these proceedings the plaintiff (as present trustee of the Lucantonio Family Trust) Dean Lucantonio claims damages in respect of losses said to have been occasioned by the failure of a proposed acquisition of land for development, and of subsequent legal proceedings arising out of that attempted acquisition, alleging that those losses were caused or contributed to by the professional negligence respectively of the first defendant Mr Kleinert as the architectural consultant retained in respect of the proposed development, the second defendant Mr Stichter as the solicitor who acted for the purchaser on the contract and in the subsequent litigation, and the third defendant Mr Warren as the barrister retained for the purchaser in that litigation. The present judgment relates to the tender by the plaintiff of expert evidence of Senior Counsel as to what a reasonably competent barrister in Mr Warren’s position would have done if briefed to draw the summons and affidavit that initiated the proceedings and thereafter conduct those proceedings.

2 For present purposes, it suffices to record the following factual background. On 3 November 2001, Mr Lucantonio and his wife as trustees…

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 [2009] NSWSC 853
Case: [2009] NSWSC 853
Decision Date: 11 August 2009

CaseChat Overview and Summary

The case of Lucantonio v Kleinert involved a dispute between a plaintiff, Lucantonio, and a defendant, Kleinert, regarding alleged professional negligence. The matter was heard in the Federal Court of Australia. The plaintiff sought damages for professional negligence, alleging that the defendant's actions fell below the standard expected of a reasonably competent practitioner in the field.

The central legal issues before the court were the admissibility of expert evidence concerning what a prudent practitioner would have done in the relevant circumstances and the qualifications necessary for such evidence to be admissible. The court had to determine whether the expert witnesses were appropriately qualified to provide such evidence and whether the necessary circumstances were sufficiently specified. Additionally, the court needed to establish whether the rationale behind the expert witnesses' opinions was adequately articulated.

In reaching its decision, the court examined the qualifications of the expert witnesses and the specificity of the circumstances in which their opinions were based. The court held that the expert evidence was admissible only if the witnesses could demonstrate their qualifications, the relevant circumstances were clearly specified, and the rationale for their opinions was sufficiently articulated. The court found that the expert evidence met these criteria and was therefore admissible. The court ruled in favour of the plaintiff, determining that the defendant's actions did indeed fall below the standard of care expected of a reasonably competent practitioner in the field.

As a result of the court's decision, the case will proceed to the next stage, where the issues of liability and damages will be determined. The court did not specify the exact damages to be awarded at this stage but indicated that the plaintiff would be entitled to compensation for the professional negligence suffered.

Orders