Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763

Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763

The Court found that the valuation was conducted in accordance with the retainer and instructions agreed upon by the parties, and the evidence did not establish any error or negligence by LandMark White or Kenna. No common law duty of care was owed as the plaintiffs were not vulnerable and had the ability to protect their interests; there was no reliance or evidence of misleading or deceptive conduct. The defendant Ferrier was not acting in a capacity as mediator under the mediation agreement when instructing the valuer, and owed no duty beyond contractual obligations. Accordingly, the plaintiffs failed on all grounds of their claim.

Parties
Plaintiff: Peter Anthony Cahill; Second Plaintiff: Duell Estates Pty Limited; First Defendant: Greg Kenna; Second Defendant: LandMark White (NSW) Pty Limited (in liquidation) (formerly LandMark White (NSW) Pty Ltd); Plaintiff (2013/145811): Peter Anthony Cahill; Second Plaintiff (2013/145811): Duell Estates Pty Limited; Defendant (2013/145811): Ian Douglas Ferrier
Jurisdiction
Australia
Judgment Date
10 December 2014
Procedural Posture
Civil / Final Judgment After Trial
Outcome
Judgment for the defendants with costs.
Legal Topics
Expert Evidence, Valuation of Land, Duty of Care, Pure Economic Loss, Business Records, Mediation, Breach of Contract, Misleading or Deceptive Conduct, Causation of Loss
Evidence Negligence Contract Law Misleading and Deceptive Conduct Expert Evidence Valuation of Land Duty of Care Pure Economic Loss +5 more

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Parties

Peter Anthony Cahill

Plaintiff

Duell Estates Pty Limited

Second Plaintiff

Greg Kenna

First Defendant

LandMark White (NSW) Pty Limited (in liquidation) (formerly LandMark White (NSW) Pty Ltd)

Second Defendant

Peter Anthony Cahill

Plaintiff (2013/145811)

Duell Estates Pty Limited

Second Plaintiff (2013/145811)

Ian Douglas Ferrier

Defendant (2013/145811)

Procedural Posture

Civil / Final Judgment After Trial

Legal Issues

  1. 1 What were the terms of LMW's and Mr Kenna's retainer with Mr Ferrier?
  2. 2 Did LMW and Mr Kenna execute their retainer according to its terms?
  3. 3 Did LMW and Mr Kenna owe the plaintiffs a duty of care?

Ratio Decidendi

The Court found that the valuation was conducted in accordance with the retainer and instructions agreed upon by the parties, and the evidence did not establish any error or negligence by LandMark White or Kenna. No common law duty of care was owed as the plaintiffs were not vulnerable and had the ability to protect their interests; there was no reliance or evidence of misleading or deceptive conduct. The defendant Ferrier was not acting in a capacity as mediator under the mediation agreement when instructing the valuer, and owed no duty beyond contractual obligations. Accordingly, the plaintiffs failed on all grounds of their claim.

Court Disposition

Judgment for the defendants with costs.

Orders

  • Judgment for the defendants in each matter.
  • Plaintiffs to pay the costs of the proceedings.