Williams v Pagliuca - [2009] NSWCA 250

New South Wales

Court of Appeal

CITATION: Williams v Pagliuca [2009] NSWCA 250

HEARING DATE(S): 28 July 2009

JUDGMENT DATE:
19 August 2009

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 55; Sackville AJA at 56

DECISION: (1) Appeal allowed in part.
(2) Orders 2 and 3 made on 11 August 2008 set aside, and in lieu thereof judgment for the Vendors against the Solicitor in an amount of $55,500, and the Vendors are awarded interest calculated from 4 November 2005 to 31 July 2007 in the amount of $23,844, such orders to take effect as at 11 August 2008.
(3) Vendors to pay the Solicitor’s costs of the appeal, and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.

CATCHWORDS: LEGAL PRACTITIONERS – Duty of skill and care – Solicitor acting for vendor and purchaser – Solicitor fails to ensure exchanged counterparts identical – Vendor and purchaser, not knowing this, agree to substitute different property – Solicitor prepares new contract – Vendor and purchaser disagree as to terms of new contract – Purchaser withdraws from transaction – Whether solicitor in breach of duty in relation to contract for substituted property – Whether loss caused by any such breach. - DAMAGES – Solicitor breaches duty of care to vendor of property in failing to ensure exchanged counterparts identical – Purchaser subsequently withdraws from transaction – Purchaser alleges misrepresentation by estate agent as to size of bedroom – Damages assessed for loss of chance.

LEGISLATION CITED: Fair Trading Act 1987, ss 41, 42, 45, 70
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
Hammond v Minister for Works (1992) 8 WAR 505
Larking v Great Western (Nepean) Gravel Limited [1940] HCA 37; (1940) 64 CLR 221
Winnote Pty Limited v Page [2006] NSWCA 287; (2006) 68 NSWLR 531

PARTIES: Peter WILLIAMS (appellant)
Antonio PAGLIUCA (first respondent)
Domenique PAGLIUCA ( second respondent)

FILE NUMBER(S): CA 40304/08

COUNSEL: G CRADDOCK, SC/ G CURTIN (appellant)
C M HARRIS, SC (respondents)

SOLICITORS: Colin Bigger & Paisley (appellant)
Willis & Bowring (respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 2068/06

LOWER COURT JUDICIAL OFFICER: Bryson AJ

LOWER COURT DATE OF DECISION: 7 March 2008, 11 March 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Parkin v Pagliuca [2008] NSWSC 168, Parkin v Pagliuca [2008] NSWSC 827

CA 40304/08
SC 2068/06

HODGSON JA
IPP JA
SACKVILLE AJA
19 AUGUST 2009

Peter WILLIAMS v Antonio PAGLIUCA and Anor

Headnote

Facts:
The appellant (“the Solicitor”) was retained by the respondent (“the Vendors”) in about March 2004 to act on the sale of units in a unit complex being constructed by Mr Pagliuca. The Solicitor was also retained by the Purchaser in about April 2004 at a time when she wished to purchase Unit 5 in the complex.

On 29 June 2004, the Solicitor purportedly exchanged contracts for the purchase of…

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 Williams v Pagliuca

Details

AGLC: Williams v Pagliuca [2009] NSWCA 250
Case: [2009] NSWCA 250
Decision Date: 19 August 2009

CaseChat Overview and Summary

In *Williams v Pagliuca*, the dispute concerned allegations of negligence against a solicitor, Mr. Pagliuca, by his clients, the vendors of a property. The vendors alleged that the solicitor's failure to ensure that exchanged counterparts of a contract for sale were identical led to a subsequent dispute and the purchaser's withdrawal from the transaction. The vendors further contended that the solicitor was in breach of duty in relation to a new contract prepared for a substituted property, and that this breach caused them loss. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the solicitor had breached his duty of skill and care to the vendors in relation to the initial contract by failing to ensure the exchanged counterparts were identical, and whether he had breached his duty in relation to the preparation of a contract for a substituted property. The court was also required to determine whether any such breaches caused loss to the vendors, and if so, to assess the quantum of that loss.

The Court of Appeal found that the solicitor had breached his duty of care to the vendors by failing to ensure the exchanged counterparts of the initial contract were identical. However, the court also considered the vendors' claim regarding the substituted property and the purchaser's subsequent withdrawal, which was partly influenced by an alleged misrepresentation by an estate agent. The court ultimately allowed the appeal in part, setting aside previous orders and entering judgment for the vendors against the solicitor for $55,500, plus interest of $23,844. The vendors were ordered to pay the solicitor's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed in part. (2) Orders 2 and 3 made on 11 August 2008 set aside, and in lieu thereof judgment for the Vendors against the Solicitor in an amount of $55,500, and the Vendors are awarded interest calculated from 4 November 2005 to 31 July 2007 in the amount of $23,844, such orders to take effect as at 11 August 2008. (3) Vendors to pay the Solicitor's costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.

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:	Williams v Pagliuca [2009] NSWCA 250
HEARING DATE(S):	28 July 2009
JUDGMENT DATE:	19 August 2009
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 55; Sackville AJA at 56
DECISION:	(1) Appeal allowed in part. (2) Orders 2 and 3 made on 11 August 2008 set aside, and in lieu thereof judgment for the Vendors against the Solicitor in an amount of $55,500, and the Vendors are awarded interest calculated from 4 November 2005 to 31 July 2007 in the amount of $23,844, such orders to take effect as at 11 August 2008. (3) Vendors to pay the Solicitor’s costs of the appeal, and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.
CATCHWORDS:	LEGAL PRACTITIONERS – Duty of skill and care – Solicitor acting for vendor and purchaser – Solicitor fails to ensure exchanged counterparts identical – Vendor and purchaser, not knowing this, agree to substitute different property – Solicitor prepares new contract – Vendor and purchaser disagree as to terms of new contract – Purchaser withdraws from transaction – Whether solicitor in breach of duty in relation to contract for substituted property – Whether loss caused by any such breach. - DAMAGES – Solicitor breaches duty of care to vendor of property in failing to ensure exchanged counterparts identical – Purchaser subsequently withdraws from transaction – Purchaser alleges misrepresentation by estate agent as to size of bedroom – Damages assessed for loss of chance.
LEGISLATION CITED:	Fair Trading Act 1987, ss 41, 42, 45, 70 Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 Hammond v Minister for Works (1992) 8 WAR 505 Larking v Great Western (Nepean) Gravel Limited [1940] HCA 37; (1940) 64 CLR 221 Winnote Pty Limited v Page [2006] NSWCA 287; (2006) 68 NSWLR 531
PARTIES:	Peter WILLIAMS (appellant) Antonio PAGLIUCA (first respondent) Domenique PAGLIUCA ( second respondent)
FILE NUMBER(S):	CA 40304/08
COUNSEL:	G CRADDOCK, SC/ G CURTIN (appellant) C M HARRIS, SC (respondents)
SOLICITORS:	Colin Bigger & Paisley (appellant) Willis & Bowring (respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 2068/06
LOWER COURT JUDICIAL OFFICER:	Bryson AJ
LOWER COURT DATE OF DECISION:	7 March 2008, 11 March 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Parkin v Pagliuca [2008] NSWSC 168, Parkin v Pagliuca [2008] NSWSC 827