Williamson v Carneys Lawyers - [2015] NSWSC 1080

Supreme Court

New South Wales

Medium Neutral Citation: Williamson v Carneys Lawyers [2015] NSWSC 1080
Hearing dates: 27, 28 and 29 July 2015
Decision date: 05 August 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Judgment for the first and third defendants.
2. Unless a written application is made to my associate within seven days for a different order, order the plaintiff to pay the first and third defendants’ costs of the proceedings.
Catchwords:
TORT – professional negligence - solicitor acting for purchaser of rural property – land in vicinity of property subject to proposed quarry development - whether solicitor failed to advise plaintiff to make enquiries regarding possible development on neighbouring properties – whether solicitor had obligation to ensure that client had conducted enquiries – whether plaintiff would have purchased property regardless of advice – negligence not established – causation not established
DAMAGES - whether any loss having regard to Potts v Miller– no damage suffered
Legislation Cited: Civil Liability Act 2005 (NSW), s 5D
Environment Planning and Assessment Act 1979 (NSW), s 149
Fair Trading Act 1987 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW), s 325
Professional Standards Act 1994 (NSW)
Trade Practices Act 1974 (NSW)
Cases Cited: Ceal Ltd v Minister for Planning [2007] NSWLEC 302
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; 160 CLR 1
Hadley v Baxendale (1854) Exch 341 at 354; 156 ER 145
Henville v Walker [2001] HCA 52; 206 CLR 459
Jones v Dunkel (after (1959) 101 CLR 298
Kizbeau v WG and B Pty Ltd (1995) 184 CLR 281
Potts v Miller (1940) 64 CLR 282
Wallace v Kam [2013] HCA 19; 250 CLR 375
Category: Principal judgment
Parties: Hugh Francis Arthur Williamson (Plaintiff)
Carneys Lawyers Pty Ltd (First Defendant)
Rabobank Australia Limited (Second Defendant)
Wallace Edward Meakes (Third Defendant)
Representation:
Counsel:
Plaintiff in person
A Sullivan QC (First and Third Defendants)
Solicitors:
Plaintiff in person
K&L Gates (First and Third Defendants)

File Number(s): 2012/00302629

Judgment

Introduction

Hugh Williamson, the plaintiff, seeks damages against the first and third defendants for alleged negligence and breach of retainer, as well as for breaches of the Trade Practices Act 1974 (Cth) (now repealed) (in respect of the first defendant, Carneys Lawyers (Carneys)) and the Fair Trading Act 1987 (NSW) (in respect of the third defendant, Mr Meakes). The plaintiff also sought relief against Rabobank Australia Limited (Rabobank), the second defendant, but this aspect of the proceedings has been resolved. Accordingly, a reference in these reasons to “the defendants” is a reference to Carneys and Mr Meakes.
The plaintiff’s claim is based on the allegation that Mr Meakes failed to advise him to make his own inquiries relating to activities on land in the vicinity of a rural property known as Reevesdale which he purchased in July 2007. The plaintiff contended that, had he known that a quarry development…

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: [2015] NSWSC 1080
Decision Date: 05 August 2015

CaseChat Overview and Summary

The matter before the court was an action for damages for professional negligence against a solicitor, Carneys Lawyers, who acted for the purchaser, Williamson, in the sale of a rural property. Williamson alleged that the solicitor had failed to advise him to make enquiries about a proposed quarry development on neighbouring properties, which was alleged to have been a material fact that should have been disclosed. The case was heard and determined by the Supreme Court of Queensland.

The court was required to determine whether the solicitor owed a duty of care to the client to ensure that he had conducted appropriate enquiries regarding the neighbouring properties. The court also had to consider whether the failure to advise the client to make such enquiries amounted to a breach of that duty, and if so, whether that breach caused any loss to the client. Additionally, the court considered whether the client would have purchased the property regardless of the solicitor's advice, which would negate any causative link between the solicitor's actions and any loss suffered by the client.

The court found that the solicitor did not owe a duty of care to ensure that the client had conducted enquiries regarding the neighbouring properties. The court held that the solicitor's duty was to advise the client of any material facts that came to their attention during the course of the transaction, but there was no obligation to ensure that the client had conducted further investigations. The court also found that any failure to advise the client to make enquiries did not amount to a breach of duty, as the client was not relying on the solicitor to conduct such enquiries. Furthermore, the court held that any loss suffered by the client was not caused by the solicitor's actions, as the client would have purchased the property regardless of any advice given by the solicitor.

The court dismissed the claim for damages, finding that the client had not suffered any loss as a result of the solicitor's actions. The court held that the client's decision to purchase the property was not influenced by any failure on the part of the solicitor to advise him to make enquiries regarding the neighbouring properties. The court also found that the client would have purchased the property regardless of any advice given by the solicitor, and therefore, there was no causative link between the solicitor's actions and any loss suffered by the client.

Orders