NSW Caselaw
New South Wales Court of Appeal CITATION : Pinchback v Hooper [1999] NSWCA 446 FILE NUMBER(S) : CA 40013/98 HEARING DATE(S) : 5 November 1999 JUDGMENT DATE : 10 December 1999
PARTIES : Appellant- Brian Terence Pinchback & Margaret Olive Pinchback Respondent- Robert Francis Hooper JUDGMENT OF : Mason P at 1; Meagher JA at 2; Brownie AJA at 15
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 1566/95 LOWER COURT JUDICIAL OFFICER : Garling J
COUNSEL : Appellant- S Walmsley SC Respondent- A M Colefax SOLICITORS : Appellants- Ken Johnston Bedford & Co Respondents- Colin Biggers & Paisley CATCHWORDS : Purchase of property; Professional negligence; Failure of client to advise solicitor DECISION : Appeal dismissed with costs
IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY COURT OF APPEAL
DC No. 1566/95 CA No. 40013/98
MASON P MEAGHER JA BROWNIE AJA
10 DECEMBER 1999 Brian Terrence PINCHBACK and Margaret Olive PINCHBACK V Robert Francis HOOPER
PURCHASE OF PROPERTY-PROFESSIONAL NEGLIGENCE-FAILURE OF CLIENT TO ADVISE SOLICITOR
Facts: The appellants purchased a residential property at auction. On further inspection they decided to rescind the contract of sale. They did not inform their solicitor of this until the last possible day which happened to be December 24. The solicitor was unable to procure the necessary documentation in time, forcing the appellants to forego their right to rescind. The appellants sued the solicitor for professional negligence. The claim was dismissed by the trial judge. The appellants appeal against this decision.
Held: per Meagher JA ( Mason P and Brownie AJA agreeing) There was a distinct lack of documentary evidence put before the trial judge, and the evidence before him was inconsistent. This being the case, it was open for his Honour to make a finding based on the credibility of witnesses. His Honour did this, accepting the respondent's evidence over the appellants. His Honour was correct in finding that it was unfeasible for a solicitor to obtain a certificate of compliance on Christmas Eve, having only just been informed of the client's wish to do so earlier that day. Hence there had been no professional negligence. ORDERS
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