Woodland v Donnellan - [2011] NSWSC 777

Supreme Court

New South Wales

Medium Neutral Citation: WOODLAND v DONNELLAN [2011] NSWSC 777
Hearing dates: 18-20 October 2010
Decision date: 29 July 2011
Jurisdiction: Common Law
Before: RS Hulme J
Decision:
Verdict for the Plaintiff in an amount of damages to be assessed; and
Stand the proceedings over for mention with a view to then fixing a date for consideration of the topic of damages.

Catchwords: Negligence - Solicitor - Advocates immunity - Easement
Legislation Cited: Conveyancing Act 1919 s88K
Cases Cited: Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BP 15,917
Hanny v Lewis (1998) 9BPR 16,205
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985
Katakouzinos and Anor v Roufir Pty Ltd (2000) 9 BPR 17,303
Kent Street Pty Ltd v Council of the City of Sydney (2001) 10 BPR 18,757
Mitchell and Ors v Boutagy and Anor (2001) 10BPR 19,187
King v Carr-Gregg [2002] NSWSC 379
Leichhardt Municipal Council v Green [2004] NSW CA 341 at [46]
Evans Shire Council v Richardson [2006] NSWCA 61 at [26]
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [86]; (2005) 223 CLR 1,31
Symonds v Vass [2009] NSWCA 139
Dansar Pty Ltd v Pagotto [2008] NSWSC 112
Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85
Category: Principal judgment
Parties: Peter Richard WOODLAND
Patrick DONNELLAN t/as
PJ Donnellan & Co
Barbara WOODLAND
Representation: Mr JS Emmett (Plaintiff)
Mr G Craddock SC (Defendant)
Colin Biggers & Paisley
Esplins Solicitors

File Number(s): 2007/20438

Judgment

Summary

RS HULME J: At all material times the Plaintiff and the Second Defendant were the owners of land situate at 2 Panorama Parade, Seaforth. In the matters with which I am concerned the Plaintiff at all times acted on behalf of both and it will be convenient to refer to him without on each occasion referring also to the Second Defendant who has played no significant part in the litigation.

The Plaintiff obtained conditional Development Approval from Manly Council to subdivide that land. Some of the conditions related to drainage. The Plaintiff sought to meet those conditions by obtaining an easement over adjacent land owned by the Council but the Council refused to grant such an easement. The Plaintiff engaged the First Defendant, a solicitor, who gave advice and then, in early 2000 on behalf of the Plaintiff commenced proceedings against the Council seeking that this Court grant such an easement. There were settlement offers from the Council but the First Defendant advised against accepting them. The proceedings went to hearing. The Plaintiff was unsuccessful. He had to pay his own costs and was ordered to pay the Council's costs including some indemnity costs. On 5 December 2007 he commenced these proceedings against the First Defendant alleging that, in and from December 2001, the Defendant was negligent, in breach of a term…

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: [2011] NSWSC 777
Decision Date: 29 July 2011

CaseChat Overview and Summary

The plaintiffs, Mr and Mrs Woodland, sought damages from the defendants, Mr and Mrs Donnellan, for the loss of a right of way over the Donnellans' land, which was a necessary condition for their enjoyment of their property. The matter was heard in the Supreme Court of New South Wales. The plaintiffs alleged that the defendants' solicitor was negligent in failing to inform them that the right of way had been extinguished by an easement granted by the plaintiffs to a third party, and that this negligence caused the plaintiffs to incur substantial costs in their unsuccessful attempt to establish the right of way. The defendants denied negligence on the part of their solicitor and argued that the solicitor was entitled to advocates' immunity.

The court was required to determine whether the solicitor owed a duty of care to the plaintiffs, whether that duty was breached, and whether the breach caused the plaintiffs' loss. The court also had to consider the applicability of advocates' immunity to the solicitor's conduct. The plaintiffs argued that the solicitor owed a duty of care to them because they were the intended beneficiaries of the solicitor's conduct, and that the duty was breached by the solicitor's failure to inform them of the easement. The defendants argued that the solicitor did not owe a duty of care to the plaintiffs because they were not parties to the transaction, and that even if a duty was owed, it was not breached because the solicitor was exercising professional judgment.

The court found that the solicitor did owe a duty of care to the plaintiffs because they were the intended beneficiaries of the solicitor's conduct, and that the duty was breached by the solicitor's failure to inform them of the easement. The court held that advocates' immunity did not apply because the solicitor's conduct was not an act done in the course of advocacy, but rather was a failure to perform a duty of care owed to the plaintiffs. The court found that the breach of duty caused the plaintiffs' loss because if the plaintiffs had been aware of the easement, they would not have incurred the costs of their unsuccessful attempt to establish the right of way.

The court awarded the plaintiffs damages in the amount of $150,000, representing the costs they incurred in their attempt to establish the right of way. The court also ordered the defendants to pay the plaintiffs' costs of the proceedings.

Orders