Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 5) [2021] NSWSC 1499

Supreme Court New South Wales

Medium Neutral Citation: Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 5) [2021] NSWSC 1499 Hearing dates: 8-9 November 2021 Decision date: 19 November 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the plaintiff against the defendants. (2) Direct the parties to provide to my Associate within seven days agreed calculations of the judgment sum in accordance with these reasons. (3) Subject to order (4), order the defendants' to pay the plaintiff's costs of the proceedings. (4) If any party wishes to apply for a different costs order to the order in (3) above, such application is to be made in writing to my Associate within seven days, together with any evidence and submissions in support. Catchwords: CONTRACTS AND NEGLIGENCE — plaintiff claims damages for alleged negligence and breach of retainer and duty of care — defendants knew that if notices to extend the Registration Date were not given by certain dates purchasers would have an automatic entitlement to rescind and receive their deposit — defendants told the developer of the effect of contractual provisions but the developer did not appreciate their import or know whether it was entitled to an extension — the developer gave instructions to defendants to extend Registration Dates by agreement or notice — date on which notice had to be given was never set out in the numerous schedules provided by the defendants to the developer — defendants would have appreciated that when notices were sent that they were invalid in respect of contracts for two Lots — defendants were negligent and breached their retainer by not alerting the developer to the imminent deadline for service of notices — reasonable care required the defendants to seek instructions from the developer to ascertain whether they ought send notices to purchasers — not satisfied that defendants advised the developer that it had a defence to the claim for declarations that contracts had been validly rescinded in associated Equity proceedings or that its conduct in respect of the proceedings was negligent or amounted to breach NEGLIGENCE — Defences — Contributory negligence and apportionment — persons alleged to have contributed to the harm taken as agents of the developer rather than potential wrongdoers — the contractual provisions were relatively complex for non-lawyers and the developer was entitled to rely on the defendants' expertise — developer cannot bear full responsibility for monitoring dates by which extension of time notices had to be given — a reasonable person in the position of the developer would have appreciated the import of the provisions and realised that notices had to be given by certain dates — failure to take reasonable precautions against a risk of harm established — reduction for the developer's contributory negligence NEGLIGENCE — Damages — but for the defendants' negligence, the developer would have instructed the defendants to serve notices to extend time — developer received less for the Lots because of the defendants' breach — factual causation and scope of liability established — not satisfied that the scope of the defendants' liability extends to consequential loss arising from the need to re-sell the Lots or legal costs associated with the Equity proceedings —plaintiff entitled to interest at court pre-judgment rates under s 100 of the Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Liability Act 2002 (NSW), ss 5A, 5B, 5C, 5D, 5E, 5O, 5R, 5S, 34 Civil Procedure Act 2005 (NSW), s 100 Conveyancing Act 1919 (NSW), s 88B Corporations Act 2001 (Cth), s 459G Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Calderbank v Calderbank [1975] 3 All ER 333 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37 Rennie Golledge Pty Ltd v Ballard (2011) 82 NSWLR 231; [2012] NSWCA 376 Renold Australia Pty Ltd v Fletcher Insulation (Vic) Pty Ltd [2007] VSCA 294 Scottsdale Homes Pty Ltd v Gemkip Pty Ltd [2008] QSC 326 Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 Walton t/as Pitcher Walton & Co v Efato Pty Ltd [2008] NSWCA 86 Watson v Foxman (1995) 49 NSWLR 315 Yager v Fishman & Co [1944] 1 All ER 552 Texts Cited: Practice Note SC Gen 16 Category: Principal judgment Parties: Shoal Bay Beach Constructions No. 1 Pty Ltd (Plaintiff) Mark Hickey and the persons listed in Schedule A to this Statement of Claim t/as at all material times as Sparke Helmore (Defendants) Representation: Counsel: D Weinberger (Plaintiff) A Zahra SC / J Burnett (Defendants)