Humphries v Cooke [2009] NSWSC 1250

Humphries v Cooke [2009] NSWSC 1250

Although the defendants breached their duty of care by failing to expressly inform the plaintiffs that the final day for obtaining development consent was 21 June 2006, the plaintiffs failed to prove causation. If told the correct date, the Council probably would have issued the same consent on 21 June 2006, but that consent did not satisfy cl 10.1 of the contract because, properly construed in light of the contract as a whole and the known surrounding circumstances, the relevant development consent was approval of development application SF 9464 for the contemplated subdivision lodged in December 2003, not any development consent for any subdivision. Comsand would therefore have been...

Jurisdiction
Australia
Judgment Date
25 November 2009
Procedural Posture
Common Law Division Claim Alleging Breach of Retainer, Negligence and Misleading or Deceptive Conduct Against Solicitors Arising From a Conveyancing Retainer / Principal Judgment After Hearing
Outcome
The plaintiffs' claim was dismissed and verdict and judgment entered for the defendants against the plaintiffs.
Legal Topics
["solicitors' Duty of Care" 'extent of Retainer' 'causation of Damage' 'construction of Contract' 'development Consent Condition' 'misleading or Deceptive Conduct' 'costs']
['negligence' 'contract' 'consumer Law' 'professional Negligence' 'conveyancing'] ["solicitors' Duty of Care" 'extent of Retainer' 'causation of Damage' 'construction of Contract' 'development Consent Condition' 'misleading or Deceptive Conduct' 'costs']

Case Brief

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Procedural Posture

Common Law Division Claim Alleging Breach of Retainer, Negligence and Misleading or Deceptive Conduct Against Solicitors Arising From a Conveyancing Retainer / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendants' retainer extended to providing advice on, or monitoring, the development approval for subdivision of the property." 'Whether the defendants breached their duty of care by failing to inform the plaintiffs that the last day for obtaining development consent under the contract was 21 June 2006 rather than 22 June 2006.' 'Whether the defendants engaged in misleading or deceptive conduct contrary to s 42 of the Fair Trading Act 1987.' "Whether the defendants' breach caused the plaintiffs' alleged loss, including loss of the bargain under the contract with Comsand." 'Whether, on the proper construction of the contract, the development consent obtained for a three-lot and residue-lot subdivision satisfied cl 10.1 of the contract.']

Ratio Decidendi

Although the defendants breached their duty of care by failing to expressly inform the plaintiffs that the final day for obtaining development consent was 21 June 2006, the plaintiffs failed to prove causation. If told the correct date, the Council probably would have issued the same consent on 21 June 2006, but that consent did not satisfy cl 10.1 of the contract because, properly construed in light of the contract as a whole and the known surrounding circumstances, the relevant development consent was approval of development application SF 9464 for the contemplated subdivision lodged in December 2003, not any development consent for any subdivision. Comsand would therefore have been...

Court Disposition

The plaintiffs' claim was dismissed and verdict and judgment entered for the defendants against the plaintiffs.

Orders

  • ["The plaintiffs' claim be dismissed." 'There is a verdict and judgment for the defendants against the plaintiffs.' "The plaintiffs pay the defendants' costs as agreed or assessed up until 19 February 2009 and from 20 February 2009 on an indemnity basis."]