Wang v Zheng - [2010] NSWDC 135

CITATION: Wang v Zheng [2010] NSWDC 135

HEARING DATE(S): 8 April 2010 and subsequent supplementary written submissions to 14 May 2010

JUDGMENT DATE:
27 May 2010

JURISDICTION: Civil jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. Judgment for the defendant.
2. Plaintiff to pay the defendant’s costs, on the ordinary basis.
3. Liberty to apply within 14 days for some other costs order.

CATCHWORDS: PROFESSIONAL NEGLIGENCE - claim in contract and tort against a solicitor by a client in respect of a failure to properly advise in connection with a contract for the purchase of an apartment - breach of duty admitted but any actual loss was disputed where the value of the property exceeded the amount paid by way of purchase - alternatively, causation was disputed where plaintiff did not prove she would not have purchased the property if she had been properly advised

LEGISLATION CITED: Civil Liability Act 2002: s 5D(3)

CASES CITED: Braid v W L Highway & Sons (1964) 198 E. G. 1091Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54Ford v White [1964] 2 All ER 755Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) CLR 414
Lahoud v Lahoud [2009] NSWSC 623
Malec v JC Hutton Pty Ltd [1990] HCA 20
McCrohon v Harith [2010] NSWCA 67
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

PARTIES: Yonggui Wang (Plaintiff)
Denise Zheng trading as Denise Zheng Lawyers (Defendant)

FILE NUMBER(S): 2530/09

COUNSEL: Mr F D Curran (Plaintiff)
Ms K Stern (Defendant)

SOLICITORS: Elliotts Lawyers (Plaintiff)
Colin Biggers & Paisley (Defendant)

REASONS FOR JUDGMENT

The proceedings and the issues

1. The plaintiff claims damages from her former solicitor for an alleged loss arising out of a conveyancing transaction in respect of the purchase of a penthouse apartment for $3.2 million. It was only after exchange of contracts that the plaintiff learned she was required to pay an additional $269,043.48 in respect of a liability for Goods and Services Tax (GST), about which her solicitor had failed to advise her before she entered the contract for sale. The plaintiff claims $272,249.48, being the GST plus $3,206.00 paid to the solicitor for the transaction costs and fees.

2. The plaintiff alleged negligence and breach of contract in that the solicitor did not properly advise her, before she entered the contract for sale with the vendors of the property, as to the effect of a clause in the contract rendering her liable, as purchaser, for any GST payable in respect of the supply under the contract. It was alleged that she would not have entered the contract for sale if she had been advised of the liability to pay GST in addition to the agreed purchase price.

3. The defendant admitted breach of her duty of care and breach of her retainer contract with the plaintiff, but denies that the plaintiff suffered any loss or damage. The defendant relied upon the report of an expert valuer that the value of the property…

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 Wang v Zheng

Details

AGLC: Wang v Zheng [2010] NSWDC 135
Case: [2010] NSWDC 135
Decision Date: 27 May 2010

CaseChat Overview and Summary

The plaintiff in this case, Wang, sought to recover damages from the defendant, Zheng, for professional negligence in contract and tort. Wang alleged that Zheng, as her solicitor, failed to properly advise her in relation to a contract for the purchase of an apartment. Wang claimed that Zheng's negligence resulted in her purchasing the apartment for an amount that exceeded the value of the property. Zheng admitted to a breach of duty but denied any actual loss, arguing that the value of the property was greater than the purchase price. Zheng further argued that Wang could not prove that she would not have purchased the property if she had received proper advice.

The court was required to determine whether Wang had suffered any actual loss as a result of Zheng's negligence and whether such loss was causally linked to the breach. The court considered the evidence provided by both parties, including expert opinions on the value of the property and the impact of Zheng's advice on Wang's decision to purchase the apartment. The court also examined the principles of causation and loss in professional negligence cases, including the need for the plaintiff to prove that the defendant's negligence caused the loss.

The court found that Wang had not proven that she would not have purchased the property if she had received proper advice from Zheng. The court held that Wang had not suffered any actual loss as the value of the property exceeded the purchase price. The court further found that even if there had been a breach of duty, Wang had not established a causal link between the breach and any loss suffered. The court therefore dismissed Wang's claim and ordered that judgment be entered in favour of Zheng. The court also ordered Wang to pay Zheng's costs, on the ordinary basis, and granted liberty to apply for some other costs order within 14 days.

Orders

Orders of the court

1. Judgment for the defendant.

2. Plaintiff to pay the defendant’s costs, on the ordinary basis.

3. Liberty to apply within 14 days for some other costs order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Wang v Zheng [2010] NSWDC 135
HEARING DATE(S):	8 April 2010 and subsequent supplementary written submissions to 14 May 2010
JUDGMENT DATE:	27 May 2010
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendant. 2. Plaintiff to pay the defendant’s costs, on the ordinary basis. 3. Liberty to apply within 14 days for some other costs order.
CATCHWORDS:	PROFESSIONAL NEGLIGENCE - claim in contract and tort against a solicitor by a client in respect of a failure to properly advise in connection with a contract for the purchase of an apartment - breach of duty admitted but any actual loss was disputed where the value of the property exceeded the amount paid by way of purchase - alternatively, causation was disputed where plaintiff did not prove she would not have purchased the property if she had been properly advised
LEGISLATION CITED:	Civil Liability Act 2002: s 5D(3)
CASES CITED:	Braid v W L Highway & Sons (1964) 198 E. G. 1091Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54Ford v White [1964] 2 All ER 755Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) CLR 414 Lahoud v Lahoud [2009] NSWSC 623 Malec v JC Hutton Pty Ltd [1990] HCA 20 McCrohon v Harith [2010] NSWCA 67 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
PARTIES:	Yonggui Wang (Plaintiff) Denise Zheng trading as Denise Zheng Lawyers (Defendant)
FILE NUMBER(S):	2530/09
COUNSEL:	Mr F D Curran (Plaintiff) Ms K Stern (Defendant)
SOLICITORS:	Elliotts Lawyers (Plaintiff) Colin Biggers & Paisley (Defendant)