Fussell v Hanrahan t/as Dignan & Hanrahan Solicitors [2024] NSWSC 1388

Supreme Court New South Wales

Medium Neutral Citation: Fussell v Hanrahan t/as Dignan & Hanrahan Solicitors [2024] NSWSC 1388 Hearing dates: 29-31 July 2024; 1-2 August 2024; 5 & 6 August 2024 Date of orders: 21 November 2024 Decision date: 21 November 2024 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the first and second defendants. 2. Judgment for the third defendant. 3. The plaintiffs are to pay the defendants' costs. Catchwords: OCCUPATIONS – legal practitioners – solicitors – duty of care – proceedings for damages from two firms of solicitors – where both firms acted successively for the plaintiffs in respect of a contract to purchase a commercial property – where clause 33.2 of the contract allowed for rescission if either party died prior to completion – where the vendor of the property died before the contract settled – the vendor's executor rescinded the contract – whether the first defendant breached his duty of care by failing to advise the first plaintiff of the presence and effect of clause 33.2 – where the first defendant told the first plaintiff about the terms of clause 33.2 but did not recommend that the clause be modified or deleted – first defendant had an obligation to provide advice about clause 33.2 in the unusual circumstances – first defendant breached his duty of care OCCUPATIONS – legal practitioners – solicitors – duty of care – where clause 49 of the contract and a deed of life estate document granted the vendor a life estate over a house constructed on top of the six garages on the property – where the form of transfer prepared by vendor's solicitor mistakenly caused the whole of the property to be transferred to the vendor for life with the remainder to the purchaser – whether the first defendant breached his duty of care by failing to advise the first defendant that it was not possible to give effect to the agreed upon life estate – where the first defendant failed to identify the discrepancy between the contract and deed and the transfer – where the first defendant failed to advise of the difficulties of giving legal effect to the agreement in clause 49 and the deed – first defendant breached his duty of care NEGLIGENCE – causation – factual causation – whether the first defendant's breach caused any loss suffered by the plaintiffs – burden of proof on the plaintiffs to prove, on the balance of probability, any fact relevant to causation – where the evidence strongly suggest that no agreement to alter or delete clause 33.2 would have been reached with the vendor – where the evidence did not establish that the vendor would have agreed not to require the life estate over the house – where the first plaintiff was not in a position to settle the contract regardless – held that the cause of any loss suffered by the plaintiffs was not any breach by the first defendant OCCUPATIONS – legal practitioners – solicitors – duty of care – where third defendant commenced to act after contract entered into - whether the third defendant breached his duty of care by failing to advise the first plaintiff of the presence of clause 33.2 – whether the third defendant breached his duty of care by failing to arrange settlement prior to the vendor's death – the first plaintiff had been made aware of clause 33.2 and its effect by the first defendant prior to retaining the third defendant – where the evidence discloses that the first plaintiff did not have the funds to complete the settlement –– the third defendant did not breach his duty of care to the plaintiffs Legislation Cited: Civil Liability Act 2002 (NSW) ss 5D, 5E Conveyancing Act 1919 (NSW) s 23F Legal Profession Uniform Law (NSW) No 16a of 2014 Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Campbell v Campbell [2015] NSWSC 784 Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard (sic) James Fussell [2019] NSWCA 299; (2019) 19 BPR 39,853 D'Agostino v Anderson [2012] NSWCA 443 Forster v Outred [1982] 1 WLR 86; [1982] 2 All ER 753 Fussell v Deigan [2018] NSWSC 1419; (2018) 19 BPR 38,755 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Macindoe v Parbery (1994) 6 BPR 13,483 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444; [1976] HCA 21 Pirrottina v Pirrottina [2024] NSWSC 558 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Texts Cited: Nil Category: Principal judgment Parties: Bernard James Fussell (First Plaintiff) Blue Star Trading Corporation Pty Ltd (Second Plaintiff) Bruce Vincent Hanrahan t/as Dignan & Hanrahan Solicitors (First Defendant) David James Duncombe t/as Dignan & Hanrahan Solicitors (Second Defendant) Steven Brown t/as Etienne Lawyers (Third Defendant) Representation: Counsel: M Cashion SC & M Karam (First & Second Plaintiffs) A C Harding SC (First & Second Defendants) A Avery-Williams & L Dargan (Third Defendant)