Greer v Pickering [2015] NSWSC 1131

Greer v Pickering [2015] NSWSC 1131

The plaintiff did not prove that the second defendant was instructed before exchange to include the pleaded damage clause in the contract for sale, and the solicitor was not negligent or in breach of retainer. In any event, the plaintiff already had enforceable rights under the contract, the Lease and terms implied by the Conveyancing Act 1919 (NSW), and any alleged omission was not proved to be a necessary condition of the plaintiff's losses. The losses were caused by the first defendant's wrongdoing and the plaintiff's failure to enforce her legal rights promptly; no loss was attributable to the second defendant.

Jurisdiction
Australia
Judgment Date
13 August 2015
Procedural Posture
Common Law Tort and Contract Claim for Damages for Alleged Professional Negligence and Breach of Solicitor Retainer / Principal Judgment After Hearing; Claim Against First Defendant for Possession Resolved by Consent Orders, Remaining Claim Against Second Defendant Determined
Outcome
Judgment for the second defendant.
Legal Topics
['solicitor Negligence' 'breach of Retainer' 'causation' 'apportionable Claim' 'contributory Negligence' 'mitigation of Loss' 'implied Covenants in Lease' 'residential Tenancy and Right to Possession']
['tort' 'professional Negligence' 'contract' 'landlord and Tenant' 'conveyancing' 'civil Liability'] ['solicitor Negligence' 'breach of Retainer' 'causation' 'apportionable Claim' 'contributory Negligence' 'mitigation of Loss' 'implied Covenants in Lease' 'residential Tenancy and Right to Possession']

Case Brief

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Procedural Posture

Common Law Tort and Contract Claim for Damages for Alleged Professional Negligence and Breach of Solicitor Retainer / Principal Judgment After Hearing; Claim Against First Defendant for Possession Resolved by Consent Orders, Remaining Claim Against Second Defendant Determined

Legal Issues

  1. 1 ["Whether the second defendant solicitor was instructed to include in the contract for sale a term terminating the first defendant's right to possession if more than $10,000 damage was caused to the Property." 'Whether the second defendant was negligent or in breach of retainer by failing to include such an express term in the contract for sale.' "Whether any alleged negligence caused or contributed to the plaintiff's delay and expense in evicting the first defendant, repair costs, or loss of rental income." 'Whether the plaintiff was contributorily negligent or failed to mitigate loss by not promptly enforcing her rights to evict the first defendant.' 'Whether the claim was an apportionable claim under Part 4 of the Civil Liability Act 2002 (NSW).']

Ratio Decidendi

The plaintiff did not prove that the second defendant was instructed before exchange to include the pleaded damage clause in the contract for sale, and the solicitor was not negligent or in breach of retainer. In any event, the plaintiff already had enforceable rights under the contract, the Lease and terms implied by the Conveyancing Act 1919 (NSW), and any alleged omission was not proved to be a necessary condition of the plaintiff's losses. The losses were caused by the first defendant's wrongdoing and the plaintiff's failure to enforce her legal rights promptly; no loss was attributable to the second defendant.

Court Disposition

Judgment for the second defendant.

Orders

  • ['Judgment for the second defendant.' "Unless an application for a different order is made in writing to my Associate within seven days hereof, order the plaintiff to pay the second defendant's costs of the proceedings."]