Patterson v Bruinsma & 2 ORS - [2004] NSWCA 279

Reported Decision:
(2004) Aust Torts Reports 81-769

Court of Appeal

CITATION: PATTERSON v. BRUINSMA & 2 ORS [2004] NSWCA 279

HEARING DATE(S): 31/05/2004

JUDGMENT DATE:
23 September 2004

JUDGMENT OF: Handley JA at 1; Sheller JA at 2; Bryson JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: PROFESSIONAL NEGLIGENCE – solicitor- acted for developer and homeowners in complex development agreement providing for demolition of 2 houses, construction of 5 units, sale of 3 units, homeowners to receive 1 unit + $100,000 each and developer to pay expenses and keep proceeds – decisions on construction of development agreement as to holding and applying parts of purchase prices received in advance of settlement- decisions on duty of care owed by solicitor to homeowners in dealings between them and his other client the developer- solicitor held liable to indemnify homeowners against liability for damages they incurred to purchaser of one unit when sale could not be completed as developer misapplied proceeds of sale- decision on complex special facts and construction of agreement.

LEGISLATION CITED: Contracts Review Act 1980

CASES CITED: Hawkins v. Clayton (1990) 164 CLR 539
March v. E & M N Stramare Pty Ltd (1991) 171 CLR 506
Bullock v London General Omnibus Company [1906] 1 KB 264
Harkins v. Butcher & Anor (2002) 55 NSWLR 558

PARTIES :
Dean Anthony Patterson t/as DA Patterson Partners - Appellant
Peter Bruinsma, Clara Adriana Bruinsma, William Cecil Mansfield & June Mansfield - Respondents

FILE NUMBER(S): CA 40398 of 2003

COUNSEL: D. Davies SC and A.M. Colefax - Appellant
J. Anderson - Respondents

SOLICITORS: Colin Biggers & Paisley - Appellant
Gibson Howlin - Respondents

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9031 of 2000

LOWER COURT
JUDICIAL OFFICER : Rolfe DCJ

40398/03

HANDLEY JA
SHELLER JA
BRYSON JA
THURSDAY 23 SEPTEMBER 2004

DEAN ANTHONY PATTERSON T/AS DA PATTERSON PARTNERS -v- PETER BRUINSMA & 3 ORS

Judgment

1 HANDLEY JA: I agree with Bryson JA.

2 SHELLER JA: I agree with Bryson JA.

3 BRYSON JA: The appellant is Dean Anthony Patterson (Mr Patterson) who is a solicitor and practises as DA Patterson Partners. The respondents are Peter Bruinsma, Clara Adriana Bruinsma, William Cecil Mansfield and June Mansfield. (I will refer to the respondents as Bruinsma and Mansfield). Before embarking on a more careful statement of the unusual facts of this appeal I will sketch them in outline, necessarily without complete accuracy. Bruinsma and Mansfield owned two houses side by side in Dolans Bay, also called Caringbah. On 27 August 1998 they entered into a Development Agreement with Mitchell Classic Homes Pty Limited (MCH) and its two directors, Graham Lawrence Mitchell and his brother Grant Lee Mitchell (the Mitchells). The Development Agreement was prepared by Messrs Watkins Tapsell & Nolan Solicitors who then acted for Bruinsma and Mansfield but are not parties to this litigation. According to the Development Agreement MCH was to redevelop the land on which the two houses stood and build five town houses. The…

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 Patterson v Bruinsma & 2 ORS

Details

AGLC: Patterson v Bruinsma & 2 ORS [2004] NSWCA 279
Case: [2004] NSWCA 279
Decision Date: 23 September 2004

CaseChat Overview and Summary

The case of *Patterson v Bruinsma & 2 ORS* concerned a dispute arising from a development agreement where a solicitor acted for both the developer and the homeowners. The agreement involved the demolition of two houses, the construction of five units, and the sale of three units, with the homeowners to receive one unit and $100,000 each, while the developer was to cover expenses and retain sale proceeds. The homeowners sought to recover damages they incurred to a purchaser of one unit when the sale could not be completed due to the developer's alleged misapplication of sale proceeds.

The primary legal issues before the court were the construction of the development agreement, specifically concerning the holding and application of advance purchase monies, and the extent of the duty of care owed by the solicitor to the homeowners in their dealings with the developer, who was also his client. The court was required to determine whether the solicitor had breached his duty of care to the homeowners and, if so, whether he was liable to indemnify them for the losses they suffered as a result of the failed sale.

The court found the solicitor liable to indemnify the homeowners against the damages they incurred. This decision was based on the specific facts of the case and the interpretation of the development agreement. The reasoning likely involved an assessment of the solicitor's conduct in managing the conflicting interests of his clients and the implications of the developer's actions in misapplying the sale proceeds. The court applied principles of professional negligence and contractual interpretation to reach its conclusion.

The appeal was dismissed, and the solicitor was 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:	PATTERSON v. BRUINSMA & 2 ORS [2004] NSWCA 279
HEARING DATE(S):	31/05/2004
JUDGMENT DATE:	23 September 2004
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Bryson JA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	PROFESSIONAL NEGLIGENCE – solicitor- acted for developer and homeowners in complex development agreement providing for demolition of 2 houses, construction of 5 units, sale of 3 units, homeowners to receive 1 unit + $100,000 each and developer to pay expenses and keep proceeds – decisions on construction of development agreement as to holding and applying parts of purchase prices received in advance of settlement- decisions on duty of care owed by solicitor to homeowners in dealings between them and his other client the developer- solicitor held liable to indemnify homeowners against liability for damages they incurred to purchaser of one unit when sale could not be completed as developer misapplied proceeds of sale- decision on complex special facts and construction of agreement.
LEGISLATION CITED:	Contracts Review Act 1980
CASES CITED:	Hawkins v. Clayton (1990) 164 CLR 539 March v. E & M N Stramare Pty Ltd (1991) 171 CLR 506 Bullock v London General Omnibus Company [1906] 1 KB 264 Harkins v. Butcher & Anor (2002) 55 NSWLR 558
PARTIES :	Dean Anthony Patterson t/as DA Patterson Partners - Appellant Peter Bruinsma, Clara Adriana Bruinsma, William Cecil Mansfield & June Mansfield - Respondents
FILE NUMBER(S):	CA 40398 of 2003
COUNSEL:	D. Davies SC and A.M. Colefax - Appellant J. Anderson - Respondents
SOLICITORS:	Colin Biggers & Paisley - Appellant Gibson Howlin - Respondents

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9031 of 2000
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ