Thomas v Adam - [2000] NSWCA 127

CITATION: Thomas v Adam [2000] NSWCA 127

FILE NUMBER(S): CA 40723/98

HEARING DATE(S): 14 April 2000

JUDGMENT DATE:
16 May 2000

PARTIES :

Kay Thomas
(Appellant)
v
Thomas Laurie Adam t/as Cunningham & Adam
(Respondent)

JUDGMENT OF: Giles JA at 1; Heydon JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 4284/97

LOWER COURT
JUDICIAL OFFICER : Murphy ADCJ

COUNSEL: A: Mr M R Aldridge SC & Mr G J L Scragg
R: Mr D Davies SC & Mr N A Nicholls

SOLICITORS: A: The Hargreaves Practice
R: Turtons

CATCHWORDS: Torts - Professional Negligence - settlement of land purchase - solicitor's failure to make contract conditional upon the variation of a restriction on use - solicitor's delay - increased building costs and other expenses - whether damages resulted from the solicitor's negligence - Damages - distinction between damages for professional negligence and damages for breach of warranty

LEGISLATION CITED: Conveyancing Act 1919, s88B
Legal Profession Act 1987

CASES CITED:
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Kyriakou v Hughes (1984) Aust Torts Rep 80-646
Ford v White & Co (1964) 1 WLR 885
Sved v The Council of the Municipality of Woollahra (1995) NSW ConvR 55-736
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342
Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168
Gascor v Ellicott [1997] 1 VR 332
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65

DECISION: Dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40723/98
DC 4284/97

GILES JA
HEYDON JA
DAVIES AJA

TUESDAY 16 MAY 2000

Kay THOMAS v Thomas Laurie ADAM T/AS CUNNINGHAM & ADAM

JUDGMENT

1    GILES JA: I agree with Davies AJA.
2    HEYDON JA: I agree with Davies AJA.
3    DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court of New South Wales, her Honour Acting Judge Murphy, in a claim brought by the appellant, Kay Thomas, against her solicitor, Thomas Laurie Adam. Although the learned trial Judge found that Mr Adam had been professionally negligent, her Honour disallowed all but one of the items of damage which were claimed. Her Honour gave judgment for $2,500 plus interest of $295.32, a total of $2,795.32.
4    In the proceedings before the learned trial Judge, Mr Adam was represented but he did not give evidence. Her Honour accepted the substance of the evidence given by Mr and Mrs Thomas. Her Honour found that Mrs Thomas and her husband, David Thomas, who was a builder and designer, had lived for many years at the property at 41 Six Mile Road, Raymond Terrace (the "Six Mile Road property"). In 1995, they decided to sell the home and to purchase a smaller block of land on which to build a home. The Six Mile Road property was put…

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 Thomas v Adam

Details

AGLC: Thomas v Adam [2000] NSWCA 127
Case: [2000] NSWCA 127
Decision Date: 16 May 2000

CaseChat Overview and Summary

In *Thomas v Adam*, the plaintiff, Mr Thomas, sued his former solicitor, Mr Adam, for professional negligence arising from the settlement of a land purchase. Mr Thomas alleged that Mr Adam's failure to make the contract conditional upon the variation of a restriction on the use of the land, and his subsequent delay in completing the purchase, caused Mr Thomas to incur increased building costs and other expenses. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the solicitor's conduct constituted negligence, and if so, whether the plaintiff had suffered loss or damage as a direct consequence of that negligence. The court was required to consider the distinction between damages recoverable for professional negligence and those that might be awarded for a breach of warranty.

The Court of Appeal found that the plaintiff had not established that the solicitor's actions or omissions caused the loss he claimed. The court reasoned that even if the solicitor had acted negligently, the evidence did not demonstrate that the plaintiff would not have proceeded with the purchase or incurred the alleged additional costs had the contract been made conditional on the variation of the restriction. The court applied principles of causation in negligence, requiring the plaintiff to prove that the loss was a foreseeable consequence of the solicitor's breach of duty.

The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

Dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

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:	Thomas v Adam [2000] NSWCA 127
FILE NUMBER(S):	CA 40723/98
HEARING DATE(S):	14 April 2000
JUDGMENT DATE:	16 May 2000
PARTIES :	Kay Thomas (Appellant) v Thomas Laurie Adam t/as Cunningham & Adam (Respondent)
JUDGMENT OF:	Giles JA at 1; Heydon JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	4284/97
LOWER COURT JUDICIAL OFFICER :	Murphy ADCJ

COUNSEL:	A: Mr M R Aldridge SC & Mr G J L Scragg R: Mr D Davies SC & Mr N A Nicholls
SOLICITORS:	A: The Hargreaves Practice R: Turtons
CATCHWORDS:	Torts - Professional Negligence - settlement of land purchase - solicitor's failure to make contract conditional upon the variation of a restriction on use - solicitor's delay - increased building costs and other expenses - whether damages resulted from the solicitor's negligence - Damages - distinction between damages for professional negligence and damages for breach of warranty
LEGISLATION CITED:	Conveyancing Act 1919, s88B Legal Profession Act 1987
CASES CITED:	Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Kyriakou v Hughes (1984) Aust Torts Rep 80-646 Ford v White & Co (1964) 1 WLR 885 Sved v The Council of the Municipality of Woollahra (1995) NSW ConvR 55-736 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 Gascor v Ellicott [1997] 1 VR 332 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65
DECISION:	Dismissed with costs.