Hatzitanos & ors v Jordan [2005] NSWSC 763

New South Wales Supreme Court

CITATION : Hatzitanos & ors v Jordan [2005] NSWSC 763

HEARING DATE(S) : 15/02/2005 - 18/02/2005, 21/02/2005 - 22/02/2005

JUDGMENT DATE : 29 July 2005

JUDGMENT OF : Hislop J

DECISION : 1. Judgment for the defendant; 2. The plaintiffs to pay the defendant's costs.

CATCHWORDS : Negligence - Conveyancing transaction - Heritage affectation - Duty of care - Causation

LEGISLATION CITED : Environmental Planning and Assessment Act 1979 - s 149

Heydon v NRMA (2001) 51 NSWLR 1 CASES CITED : Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] 1 Ch 384 Thomas v Adam [2000] NSWCA 127

First Plaintiff - Mr Harry Hatzitanos Second Plaintiff - Mrs Angela Hatzitanos PARTIES : Third Plaintiff - Mr Nick Konstantinoudis Fourth Plaintiff - Mrs Helen Konstantinoudis Defendant - Mr James Jordan

FILE NUMBER(S) : SC 20151/02

Plaintiffs - Mr C.R. de Robillard COUNSEL : Defendant - Mr G. Curtin

Plaintiffs - Davis Breene Conti Solicitors SOLICITORS : Defendant - Connery Partners

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

HISLOP J

29 July 2005

20151/02 Hatzitanos & ors v Jordan

JUDGMENT

Introduction 1 This is a claim by the plaintiffs to recover damages from the defendant solicitor for alleged negligence in respect of a conveyancing transaction.

Liability

Background facts

2 In early 2000 the plaintiffs decided to purchase a vacant block of land of approximately 5 acres, being Lot 276 in a street known as The Retreat, Kelvin Park. They intended to build two houses on the land. The first and second plaintiffs and their children were to reside in one house, the third and fourth plaintiffs and their children in the other. The land was to be registered in the name of all four plaintiffs. 3 The only vacant land in The Retreat was the land which the plaintiffs proposed to purchase. Properties erected on the other lots in The Retreat were single storey (save for one which had attic rooms) and set back 25 metres from the street. There were two storey houses in adjoining streets. 4 There was a heritage item in the vicinity of Lot 276 known as "Kelvin Park Group: The Retreat". There was no evidence the plaintiffs were aware of this prior to the settlement of the land purchase. 5 In mid February 2000 the plaintiffs paid a deposit on the purchase of the land. At about that time the first plaintiff made inquiries of the local authority, the Liverpool Council ("the Council") as to whether it would be possible to pipe a watercourse on the land. The inquiry was answered in the affirmative by an officer of the Council. At about that time the plaintiffs paid $50 deposit to secure a "luxury package" with Domaine Property Group Pty Ltd ("Domaine") and arranged for the defendant to act for them on the purchase. 6 On Saturday 26 February 2000 the plaintiffs attended at the office of the defendant. At that meeting ("the meeting") the defendant took the plaintiffs through the contract. The plaintiffs then signed the contract and gave the defendant instructions to exchange it. The plaintiffs did not produce any plans to the defendant. They told him two houses were to be built on the land but not where the houses were to be sited thereon. 7 The defendant, at the time of this transaction, was a solicitor of some 15 years' experience. He conducted a practice at Kogarah. He had acted for the third and fourth plaintiffs on a previous conveyancing transaction. He had been on Kogarah Council for about 4 years and Mayor for part of that time.