Lacey v Crompton [2001] NSWCA 144

New South Wales Court of Appeal

CITATION : Lacey v Crompton [2001] NSWCA 144 FILE NUMBER(S) : CA 40046/00 HEARING DATE(S) : 15/05/01, 16/05/01 JUDGMENT DATE : 29 May 2001

PARTIES : Gillian Lacey v Alan Crompton JUDGMENT OF : Stein JA at 1; Hodgson JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 9327/95 FILE NUMBER(S) : LOWER COURT Mahoney DCJ JUDICIAL OFFICER :

COUNSEL : In Person (Appellant) L McCallum/P M Sibtain (Respondent) SOLICITORS : In Person (Appellant) Mallesons Stephen Jaques (Respondent) CATCHWORDS : APPEAL - Court of Appeal - appeal on fact - approach of an appellate court - dispute as to credibility and factual findings of trial judge - nothing to show trial judge failed to use or palpably misused his advantage - evidence of respondent preferred. ND Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED: SS Hontestroom v SS Sagaporack [1927] AC 37 Abalos v Australian Postal Commission (1990) 171 CLR 167 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40046/00 DC 9327/95 STEIN JA HODGSON JA IPP AJA Tuesday 29 May 2001 GILLIAN LACEY v ALAN CROMPTON

Facts: The appellant sued the respondent, her solicitor, for breach of contract and professional negligence relating to a series of conveyancing transactions dating from 1989. The background facts to this appeal have given rise to a number of other actions and in all of these the appellant has been an unrepresented litigant. The appellant owned a property on Dangar Island which was encumbered with a mortgage to St George Building Society. She intended to sell this property and use the proceeds to finance the purchase of a property in the Bucketty upon which she intended to build a yurt. However these transactions were never finalised. In the course of her plans to move from Dangar Island to Bucketty the appellant re-financed the St George mortgage by taking out a loan with the Bank of New Zealand for $100,000. The appellant intended this mortgage to be "portable", in that the security would be transferred to her new property upon purchase. She retained the respondent to act for her in relation to this mortgage. However the desired "portability" of this mortgage did not eventuate. The appellant took out a further mortgage from the Commonwealth Bank for $50,000 to purchase land at Bucketty. The respondent also acted for the appellant in this mortgage and the purchase of the Bucketty land. In relation to the sale of the Dangar Island property there were three prospective purchasers and contracts were exchanged with the Haydens. The respondent represented the appellant in these transactions. There were disputes as to the content of the special conditions appurtenant to this contract, in particular the appellant's requirement that she remain in the property for two months after settlement. Due to the problems with the special conditions the sale was never finalised and the property was eventually sold by BNZ as a result of the appellant's default in mortgage repayments. As a result of the sale of the Dangar Island property by BNZ the appellant was unable to afford the repayments on the Commonwealth Bank mortgage over the Bucketty property and that Bank brought bankruptcy proceedings against her. She has lost all her assets. The appellant sued the respondent for breach of contract and professional negligence in relation to his conduct of the above transactions. The matter was resolved in favour of the respondent at trial and the appellant appeals from those findings.