Hatzitanos & ors v Jordan [2005] NSWSC 763

Hatzitanos & ors v Jordan [2005] NSWSC 763

The defendant did not have or profess special planning skill and owed the duty of an ordinary prudent and competent solicitor. The contract materials, including the s 149 certificate, did not give a clue that Lot 276 was affected by heritage issues, so the defendant did not breach his duty by failing to identify and advise of that specific heritage affectation. Although a solicitor should warn inexperienced purchasers generally that development approval may be refused or made subject to unacceptable conditions and suggest obtaining advice from an architect, town planner or the Council, the plaintiffs failed to prove on the balance of probabilities that such a warning was not given. The...

Jurisdiction
Australia
Judgment Date
29 July 2005
Procedural Posture
Claim in Tort for Damages for Alleged Solicitor Negligence in a Conveyancing Transaction / Judgment After Hearing
Outcome
Judgment for the defendant; plaintiffs' claim dismissed with costs.
Legal Topics
["solicitor's Duty of Care" 'heritage Affectation' 'section 149 Certificate' 'breach of Duty' 'causation' 'damages']
['negligence' 'professional Negligence' 'conveyancing' 'planning and Development'] ["solicitor's Duty of Care" 'heritage Affectation' 'section 149 Certificate' 'breach of Duty' 'causation' 'damages']

Case Brief

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Procedural Posture

Claim in Tort for Damages for Alleged Solicitor Negligence in a Conveyancing Transaction / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant solicitor owed and breached a duty of care to warn the plaintiffs about potential heritage or planning risks affecting development of Lot 276.' 'Whether the defendant was required to ascertain and inform the plaintiffs that development of the land could be affected by a nearby heritage item.' 'Whether any breach caused the plaintiffs to enter into the purchase contract and suffer loss.' 'Whether the plaintiffs proved any net recoverable loss.']

Ratio Decidendi

The defendant did not have or profess special planning skill and owed the duty of an ordinary prudent and competent solicitor. The contract materials, including the s 149 certificate, did not give a clue that Lot 276 was affected by heritage issues, so the defendant did not breach his duty by failing to identify and advise of that specific heritage affectation. Although a solicitor should warn inexperienced purchasers generally that development approval may be refused or made subject to unacceptable conditions and suggest obtaining advice from an architect, town planner or the Council, the plaintiffs failed to prove on the balance of probabilities that such a warning was not given. The...

Court Disposition

Judgment for the defendant; plaintiffs' claim dismissed with costs.

Orders

  • ['Judgment for the defendant.' "The plaintiffs to pay the defendant's costs."]