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 1.Appeal dismissed with costs.- 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40013/98 MASON P MEAGHER JA BROWNIE AJA FRIDAY 10 DECEMBER 1999 PINCHBACK & ANOR v HOOPER JUDGMENT 1 MASON P: I agree with Meagher JA. 2 MEAGHER JA: This is an appeal by two purchasers against a judgment given against them where they sued their solicitor Mr Hooper for negligence in the District Court before Judge Garling. 3 The appellants, who were husband and wife, purchased some land, on which then stood a cottage, in a suburb called Chatswood, by auction on 10 December 1999 for the sum of $323,000. 4 What transpired between the date of the auction (10 December 1992) and Christmas Day (25 December 1992) was the subject of various different accounts given by each of the plaintiffs, Dr Pinchback their daughter, her partner, and Mr Hooper, the appellants' solicitor. Moreover, often each witness gave testimony which was riddled with internal inconsistencies. To make matters worse, there was little if any documentary evidence which afforded unequivocal support for any version of the facts. No witness was believed in his entirety, but his Honour found the defendant more credible than the plaintiffs and their witnesses. In the light of his Honour's findings, which, being credibility based, bind everyone, I shall recite the facts as found by his Honour 5 On 14 December Mr Pinchback and Mr Hooper had a conversation about the contract; Mr Hooper went through it clause by clause. On one stage he dealt with clause 13. That clause was in the following form: 13 Application for building certificate within 14 days 13.1 In this clause, 'notice' means the same as in clause 11. 13.2 If the purchaser applies for a building certificate from the local council within 14 days after the date of this contract and the council issues a notice, refuses to issue the certificate for any reason or informs the purchaser of work to done before it will issue the certificate, the purchaser can (but only before completion) make a requisition requiring the vendor to comply with the notice, remedy the reason or do the work. 13.3 This clause does not affect any other rights of the parties. 6 Clause 11.1 of the contract provides: "In this clause 'notice' means a valid notice or order which requires work to be done or money to be spent on or in relation to the property or any adjoining footpath or road." 7 The parties' conversation on this issue was summarised by his Honour as follows: "He went through the contract with him and he said among other things: "There is a clause in the contract, clause 13, which will enable you to obtain an application for a certificate of compliance." He explained that they could make an application for a certificate which would show whether or not it complied with the Local Council (sic) Act. The council could issue a certificate saying it so complied, or they could issue a rectification order or a demolition notice. They were the sort of alternatives that the plaintiff had. The plaintiff said, "I don't see the need for such a certificate. I am going to substantially renovate the property, convert part of it into a dental surgery for my daughter. I'll get all the necessary council approvals at the time". 8 Mr Pinchback alleged a conversation took place on 16 December, in which he enquired about rescission, but his Honour disbelieved him. Mr Pinchback made numerous inspections of the property and noticed that it was dilapidated; he called it "a dump". However, he did not communicate this intelligence to Mr Hooper. 9 His Honour found that the only other conversation that Mr Hooper had with Mr Pinchback before Christmas eve occured on 15 or 16 December. It is recorded in an undated memorandum of Mr Hooper which reads as follows: "Spoke to Brian Pinchback Doesn't want me to do anything with the pty _ do not proceed until further instr's. as he believes he was 'set up' - paid too much RFH" 10 On his Honour's findings of fact it was not until some time on 24 December that Mr Pinchback informed Mr Hooper that he wished to escape from his contract. It will be noted that the only ground raised with the solicitor up to this point of time was not that the property was a "dump" but the ground that the price had been "rigged". 11 It will be remembered that the 14-day period stipulated for in clause 13 of the contract expired on 24 December. 12 The only ground of appeal which was pressed before us was that Mr Hooper was negligent in not requesting a S.317A certificate on 24 December or advising his client to request it that day. Such a report, may have triggered a notice addressed to the vendor to complete further work, failure to comply with which might have enabled Mr Pinchback to terminate the contract. But it may have provoked other Council action which would not necessarily have resulted in a right of rescission (see the evidence of Mr Bluth). 13 In my mind his Honour was correct to reject the argument. It cannot be considered negligence for a solicitor who was informed of some aspects of the matter on the last possible day, at an unknown time when the council premises might or might not have been open, to order a S.317A certificate or advise his client to rush out and do likewise, when the solicitor knew nothing about the allegation that the premises were in disrepair, had not previously been told of his clients wish to "get out of" the contract, and had previously been told that he was not to get a S.317A certificate. 14 The appeal should be dismissed with costs. 15 BROWNIE AJA: I agree with Meagher JA. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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