Morris v Leaney [2022] NSWCA 95

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Morris v Leaney [2022] NSWCA 95 Hearing dates: 18 March 2022 Date of orders: 17 June 2022 Decision date: 17 June 2022 Before: Payne JA at [1] White JA at [2] Beech-Jones JA at [3] Decision: (1) Appeal dismissed. (2) The Appellants pay the Respondent's costs of the Appeal. Catchwords: PROFESSIONAL NEGLIGENCE – architect – respondent was engaged as architect for appellant's home renovations – appellants indicated initial budget of $300,000 which was later revised to $600,000 – respondent provided "opinion on probable cost" of $590,000 excluding GST and other items in April 2015 for preliminary design – further additions to design thereafter – appellants engaged builder who commenced work on cost plus basis in December 2015 – falling out between parties and appellants continued with builder – by June 2016 substantial increase in costs and some aspects of design not pursued – renovations cost $780,000 but only increased value of house by $330,000 – appellants sued for false and misleading representation about cost of renovations and breach of contractual and tortious duty to advise about cost – appellants claimed damages on a no transaction basis namely that if known that cost would have exceeded $600,000 would not have undertaken renovations – trial judge rejected appellants evidence of express representations about cost of renovations – trial judge upheld contract and tort claim but only awarded nominal damages – whether trial judge's approach to damages was erroneous – whether trial judge's findings warranted finding that respondent obliged to advise appellants that renovations could not be undertaken for $600,000 – whether appellants would not have undertaken renovations if they had been so advised – held – trial judge's approach to damages erroneous – however not able to conclude that had respondent not breached his contractual and tortious duties then appellants would not have undertaken renovations – appeal dismissed Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Civil Liability Act 2002 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 Doepel & Associates Architects Pty Ltd v Hodgkinson [2008] WASCA 262 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; [1986] HCA 3 Hilton v Legal Profession Admission Board [2017] NSWCA 232 Leeda Projects Pty Ltd v Zeng (2020) 61 VR 384; [2020] VSCA 192 Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust [2019] NSWCA 310 McBratney v Boston [1994] ATPR 41-355 Morris v Leaney [2021] NSWDC 224 Robinson v Kenny [2014] FCA 988 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Wyzenbeek v Australasian Marine Imports Pty Ltd (in liq) (2019) 272 FCR 373; [2019] FCAFC 167 Texts Cited: Walmsley, Abadee, Zipser and Sirtes, Professional Liability in Australia (3rd ed, 2016, Law Book Company) J D Heydon, Heydon on Contract (2019, Lawbook Co) Category: Principal judgment Parties: Alan Morris (First Appellant) Tania Morris (Second Appellant) Dustin Leaney (Respondent) Representation: Counsel: A Sullivan QC; D Rayment (Appellant) MA Jones SC; A Ahmad (Respondent)