Kumar v Sydney Western Realty Pty Ltd & Anor (No. 2) [2021] NSWDC 446

Kumar v Sydney Western Realty Pty Ltd & Anor (No. 2) [2021] NSWDC 446

The Agent engaged in misleading or deceptive conduct by expressing unqualified opinions on rental and dual income potential without qualifying disclosure, despite awareness of council prohibition affecting the granny flat. The Lawyer breached duty of care by failing to adequately advise the plaintiff about the risks and legal status of the granny flat, which would have altered her decision to proceed. Causation was established as the losses resulted from both defendants' conduct, subject to contributory negligence and apportionment.

Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Civil / Principal Judgment
Outcome
First defendant liable for misleading or deceptive conduct; second defendant liable for negligence; damages assessed and apportioned; contributory negligence applied
Legal Topics
['misleading or Deceptive Conduct' 'professional Negligence' 'contributory Negligence' 'apportionment' 'advertisement for Sale of Residential Property' 'omission by Solicitor' 'duty of Care' 'causation' 'damages' 'jones V Dunkel Inference']
['trade and Commerce' 'tort' 'damages' 'evidence'] ['misleading or Deceptive Conduct' 'professional Negligence' 'contributory Negligence' 'apportionment' 'advertisement for Sale of Residential Property' 'omission by Solicitor' 'duty of Care' 'causation' 'damages' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ["Whether Agent's advertisement was misleading or deceptive for unqualified representation of rental potential and dual income stream" 'Whether omission by solicitor to advise purchaser regarding lack of council consent for granny flat constituted professional negligence' 'Content and scope of duty of care of solicitor in conveyancing transaction' 'Causation linking losses to acts/omissions of Agent and Lawyer' 'Assessment and attribution of damages, contributory negligence, and apportionment']

Ratio Decidendi

The Agent engaged in misleading or deceptive conduct by expressing unqualified opinions on rental and dual income potential without qualifying disclosure, despite awareness of council prohibition affecting the granny flat. The Lawyer breached duty of care by failing to adequately advise the plaintiff about the risks and legal status of the granny flat, which would have altered her decision to proceed. Causation was established as the losses resulted from both defendants' conduct, subject to contributory negligence and apportionment.

Court Disposition

First defendant liable for misleading or deceptive conduct; second defendant liable for negligence; damages assessed and apportioned; contributory negligence applied

Orders

  • ['Plaintiff to bring in short minutes of order within 7 days to reflect judgment and consult with defendants regarding final orders including costs' 'Damages assessed at $101,631.22 after contributory negligence' 'Liability apportioned: 25% to first defendant, 75% to second defendant' 'Judicial Registrar to refer...