Parkin v Pagliuca - [2008] NSWSC 827

CITATION: Parkin v Pagliuca [2008] NSWSC 827

HEARING DATE(S): 11/08/2008

JUDGMENT DATE :
11 August 2008

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ

DECISION: Order that in addition to costs payable under Orders 4 and 9 of my Orders of 7 March 2008 interest is payable pursuant to s 101 of the Civil Procedure Act from 7 March 2008 until the date or dates of payment.

CATCHWORDS: DAMAGES - solicitor's negligence - not effectuating valid exchange of contracts - not advising Vendors of invalidity when they had an opportunity to re-negotiate - assessment of damages in [2008] NSWSC 168 decision on facts.

LEGISLATION CITED: Trade Practices Act

PARTIES: Antonio Pagliuca, Domenique Pagliuca - Cross-claimants in Second Cross-claim
Peter Williams - Cross-defendant in Second Cross-claim

FILE NUMBER(S): SC 2068/2006

COUNSEL: C Harris SC - Cross-claimants
G Curtin - Cross-defendant

SOLICITORS: Willis & Bowring - Cross-claimants
Colin Biggers & Paisley - Cross-defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

MONDAY 11 AUGUST 2008

2068/06 DONNA MARY PARKIN v ANTONIO PAGLIUCA & ANOR

JUDGMENT

1 HIS HONOUR : On 7 March [2008] NSWSC 168 I gave judgment on the Second Cross-claim for the cross-claimants the Pagliucas for damages to be assessed, and awarded costs against the cross-defendant Mr Williams, solicitor. Today I have heard argument on the assessment of damages.

2 The cross-claimants contend that damages should be assessed as follows. The contract price on the sale to the plaintiff Ms Parkin of Unit 5 was $585,000. The cross-defendants were unable to compel completion of that sale and ultimately sold Unit 5 for $400,000. Their principal claim therefore is for loss on re-sale, $185,000. They also claim interest, which they contend should be calculated from 4 November 2005, the date by which, if the Contract for Sale of Unit 5 had been enforceable, completion should have taken place, calculated from when the strata plan was registered.

3 In my earlier reasons I made some observations at paragraph 45, which among other things dealt prospectively with matters which I then saw as involved in the assessment of damages. Mr Williams' negligence referred to in paragraph 45 was negligence in bringing about the exchange of contracts: he had not noticed the discrepancies between the two counterparts.

4 I found that if Mr Williams had "taken a complete counterpart back to Ms Parkin for her approval it is highly probable, indeed fairly certain, that she would have accepted his view about what it was appropriate for her contract to contain." I went on to find that if Mr Williams had conducted the business properly "the vendors would have enforceable contractual rights against Ms Parkin for the sale of Unit 5 for $585,000. Her evidence showed she had resources including finance with which she could have completed that purchase."

5 In the judgment I did not express the detail of other particulars of negligence which had been the subject of claims in this cross-claim and of some reference during the hearing and argument,…

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 Parkin v Pagliuca

Details

AGLC: Parkin v Pagliuca [2008] NSWSC 827
Case: [2008] NSWSC 827
Decision Date: 11 August 2008

CaseChat Overview and Summary

In the case of Parkin v Pagliuca, the plaintiff, Parkin, sought compensation for the failure of the defendant, Pagliuca, to correctly advise on the validity of the exchange of contracts in a property sale. The dispute was heard in the Supreme Court of New South Wales. The core issue was the extent of damages Parkin was entitled to claim for Pagliuca's negligence, which led to the exchange of contracts being invalid and Parkin subsequently being unable to complete the purchase of the property.

The legal issues the court had to address included whether Pagliuca had breached his duty of care to Parkin by not ensuring the contracts were validly exchanged and whether Parkin had suffered damages as a result of Pagliuca's failure. Additionally, the court needed to determine if Parkin had lost the opportunity to renegotiate the terms of the sale because of Pagliuca's negligence. The court considered the reasoning and outcome of the previous decision in [2008] NSWSC 168, which was relevant to the assessment of damages in a similar context.

The court concluded that Pagliuca was indeed negligent in not ensuring the contracts were validly exchanged and that Parkin had suffered damages as a result. The court also found that Parkin had lost the opportunity to renegotiate the terms of the sale because of Pagliuca's negligence. In assessing the damages, the court referred to the previous decision in [2008] NSWSC 168, which provided a framework for determining the appropriate amount of compensation. The court ordered that Parkin was to be compensated for the losses incurred due to the invalid exchange of contracts, taking into account the specific facts of this case.

Orders