JAAFAR v SATTOUT [1992] NSWCA 117

JAAFAR v SATTOUT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CRIPPS, SHELLER JJA and KIRBY P 5 June 1992, 28 August 1992

[1992] NSWCA 117

NEGLIGENCE — solicitor — breach of duty of care — purchase of home property — alleged failure to warn of sewer line — solicitor gives evidence that he showed Water Board diagram — judge accepts solicitor's testimony — on appeal to Court of Appeal

APPEAL — new grounds — negligence claim against solicitor — new basis of claim proposed for first time on appeal

Held:

(Cripps JA; Kirby P and Sheller JA concurring): Upon the findings made, within the issues litigated at trial, no error had been shown to authorise intervention on appeal.

Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors (1985) 59 ALJR 842 (HC); Abalos v Australian Postal Commission (1990) 171 CLR 167 applied.

Held: The requirements of procedural fairness obliged the Court of Appeal to refuse leave to enlarge the issues on appeal beyond those litigated at trial.

The University of Wollongong and Ors v Metwally [No 2] (1985) 59 ALJR 481 (HC); Coulton and Ors v Holcombe and Ors (1986) 162 CLR | applied.

Local Government Act 1919, s317A. Metropolitan Water, Sewerage and Drainage Act 1924, s262.

Kirby P I agree with the reasons of Cripps JA and with his orders.

Sheller JA I have had the benefit of reading the judgment of Cripps JA and agree with it and the orders therein proposed.

Cripps JA This is an appeal from a decision of Herron DCJ entering judgment forthe respondent (defendant) in an action brought by the appellants (the plaintiffs). The case arose out of the purchase of a property, No 54A Fifth Avenue, Berala in January 1979. The appellants were the purchasers and the respondent was their solicitor. The subject proceedings were commenced in the District Court in February 1983. The appellants alleged that the respondent, by his conduct, was in breach of his contractual obligations to them and, as well, in breach of his common law duty of care. They allege that he failed in his duty to advise them of the presence of a sewer line passing through the rear of No 54A and under the house erected on the land.