Talbot Birner Morley Pty Ltd v Zaritski - [2000] VSC 57

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

Not Restricted

No. 6771 of 1999

TALBOT BIRNER MORLEY PTY LTD (ACN 058 138 720)	Appellant
V
JOSEPH ZARITSKI	First Respondent
NATALIA ZARITSKI	Second Respondent
MICHAEL GORELIK	Third Respondent

No. 6837 of 1999

JOSEPH ZARITSKI
and
NATALIA ZARITSKI	Appellants
V
MICHAEL GORELIK	First Respondent
TALBOT BIRNER MORLEY PTY LTD (ACN 058 138 720)	Second Respondent

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	15 & 16 February 2000
DATE OF JUDGMENT:	2 March 2000
CASE MAY BE CITED AS:	Talbot Birner Morley Pty Ltd v Zaritski
MEDIA NEUTRAL CITATION:	[2000] VSC 57

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Appeal and cross-appeal from Magistrates’ Court – Purchase of land – Negligence of estate agents – Contributory negligence of purchasers.

Commonwealth v Reeve (1949) 78 CLR 410
Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1979) 43 LGRA 316
March v City of Frankston [1969] VR 350
Taylor v Armour & Co Pty Ltd [1962] VR 346

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Second Respondent	Mr MS Osborne	Connery & Partners
For the First & Second Respondents/Appellants	Mr SA Rowland	Norman Czarny & Associates

HER HONOUR:

Introduction

These two proceedings are respectively an appeal and a cross-appeal pursuant to section 109 of the Magistrates’ Court Act 1989, which provides that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court, on a question of law, from a final order of the Magistrates’ Court in that proceeding. The final order the subject of the appeals was made on 12 August 1999 by the Magistrates’ Court at Dandenong, constituted by Ms Harding, Magistrate. There was no appearance for the third respondent to the appeal (first respondent to the cross-appeal).

In the Magistrates’ Court the plaintiffs were Joseph and Natalia Zaritski (“the purchasers”), the first and second respondents/appellants in these appeals. The defendant was Michael Gorelik (“the vendor”), the third respondent/first respondent in these appeals. The third party was Talbot Birner Morley Pty Ltd, (“the agent”) the appellant/second respondent in these appeals.

The evidence before me was contained in two affidavits of Mr Czarny and Mr Furnell, the solicitors for the purchasers and the agent respectively and I was assured by counsel that there was no significant difference between the two accounts of the proceeding before the Magistrate.

The complaint of the purchasers, issued on 22 January 1998, claimed $35,000 being damages for breach of contract, negligence, and misleading and deceptive conduct in connection with the purchase by them from the vendor of a unit in South Caulfield (“the property”). The measure of damages was claimed, in effect, as the difference between the price paid by them for the property and its true value, the actual words used being “by reason of the aforementioned matters the premises was [sic] worth considerably less than the amount the plaintiffs paid for them and the plaintiffs have thereby suffered loss and damage”. The Magistrate dismissed the claim for breach of contract and the claim under the Fair Trading…

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.

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Details

Case: [2000] VSC 57
Decision Date: 2 March 2000

CaseChat Overview and Summary

The case of Talbot Birner Morley Pty Ltd v Zaritski involved a dispute regarding the purchase of land and the alleged negligence of estate agents in the transaction. The case was appealed to the court from the Magistrates’ Court, where the original decision was rendered. The primary parties involved were Talbot Birner Morley Pty Ltd, acting as the estate agents, and Zaritski, the purchaser of the land.

The legal issues before the court centred on whether the estate agents had acted negligently in the sale of the land to Zaritski and whether Zaritski had contributed to the situation through their own negligence. The court was tasked with determining the extent of liability, if any, on both parties. The decision required a careful analysis of the relationship between the estate agents and the purchaser, as well as the principles of contributory negligence.

The court examined several precedents to guide its decision. It considered the principles established in Commonwealth v Reeve (1949) 78 CLR 410, which dealt with the duty of care in professional relationships, and Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1979) 43 LGRA 316, which addressed the assessment of damages in cases of professional negligence. Additionally, the court referred to March v City of Frankston [1969] VR 350 and Taylor v Armour & Co Pty Ltd [1962] VR 346 for insights on contributory negligence and the allocation of liability in negligence cases.

After considering the evidence and applicable legal principles, the court found that the estate agents had indeed acted negligently by failing to properly disclose certain defects in the land. However, it also found that the purchaser had contributed to the situation through their own negligence by not adequately inspecting the property or seeking expert advice. The court ultimately apportioned liability between the parties, with each bearing responsibility for a share of the damages. The final orders of the court reflected this apportionment and provided guidance on the distribution of costs between the parties.

Orders