Pierpoint v Pittis [1999] NSWSC 857

New South Wales Supreme Court CITATION : Pierpoint v Pittis [1999] NSWSC 857 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 11347 of 1999 HEARING DATE(S) : 23/08/1999 JUDGMENT DATE : 30 August 1999

PARTIES : Joan Pierpoint (appellant) Elizabeth Pittis (respondent) JUDGMENT OF : Hidden J at 1

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 2965/99 LOWER COURT JUDICIAL OFFICER : J. A. Bailey, Magistrate

COUNSEL : M. Dicker (appellant) V. Hartstein (respondent) SOLICITORS : Connery & Partners (appellant) Catherine McKimm & Associates (respondent) CATCHWORDS : Appeal from magistrate - civil claim - negligent failure to advise - causation - burden of proof - powers of court on appeal - s69 Local Courts (Civil Claims) Act - Pt 5 of Justices Act. ACTS CITED : Local Courts (Civil Claims) Act, 1970 Justices Act, 1902 McKellar v Blake (Court of Appeal unreported, 30 October 1998) Warren v Coombes (1979) 142 CLR 531 CASES CITED : Mifsud v Campbell (1990) 21 NSWLR 725 Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907 Abalos v Aust Postal Commission (1990-91) 171 CLR 167 Devries v Aust Nat Railways Commission (1992-93) 177 CLR 472 DECISION : Judgment set aside - remitted to magistrate to be dealt with according to law

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Monday, 30 August 1999

No 11347 of 1999 Joan Pierpoint v Elizabeth Pittis Reasons for judgment

1 HIS HONOUR: The appellant, Joan Pierpoint, appeals against the decision of a magistrate in proceedings which were commenced in the Local Court at Port Macquarie and completed at the Downing Centre, Sydney. The appellant was the defendant to an action brought by the respondent, Elizabeth Pittis, which resulted in judgment being entered for the respondent for $14,500 plus costs. 2 The appellant is a solicitor. At the relevant time she had an office at Port Macquarie, where she employed another solicitor, Mr Timothy Fox. In June 1996 the respondent retained her for the purpose of the purchase of a property at Port Macquarie, and it was Mr Fox who had the carriage of the matter. After contracts were exchanged it was discovered that the house had structural problems requiring repair. The respondent did not proceed with the purchase and forfeited the deposit which had been paid on exchange of contracts. She sued the appellant for the amount of that deposit and associated expenses. 3 The basis of the action with which this appeal is concerned is the allegation that the appellant, through Mr Fox, was negligent in failing to advise the respondent to obtain a building report before contracts were exchanged. There was an issue of fact whether any such advice had been given. His Worship found that it had not and that it should have been. No complaint is made about that in the appeal. The difficulty arises in relation to the question of causation, that is, whether the respondent would have obtained a building report even if she had been advised to do so. 4 She was cross-examined about this at the hearing before the magistrate. She agreed that she had been on a tight budget and that any additional expenditure would have placed her in difficulty. Nevertheless, she insisted that she would have found the fee for a building report if she had been advised to obtain one. Her evidence was that she had acted upon any advice she received in relation to the purchase of the property: for example, the recommendation of an estate agent that she obtain a pest report. 5 In his reasons for judgment, his Worship dealt with this aspect of the matter as follows: …another matter which is to be considered is whether or not the Plaintiff would have obtained a report even if Mr Fox had advised her to do so. The defence submits that from the evidence of the Plaintiff she indicated that she didn't want to proceed with the purchase of the property because her budget was such that she could not afford to expend money on repairs. The defence makes reference to evidence given by the plaintiff in which she was asked: Q: In fact because you budgeted down to the last dollar, it would have been extremely difficult if you'd incurred any additional expenditure, wouldn't it? A: Yes The defence submitted that it should be found that Ms Pittis would not have followed the advice of Mr Fox in relation to obtaining a Building Report because of her finances, and hence causation has not been established.