Livingstone v Mitchell [2007] NSWSC 1477

New South Wales Supreme Court

CITATION : Livingstone v Mitchell [2007] NSWSC 1477

HEARING DATE(S) : 19/11/07-23/11/07, 29/11/07, 17/12/07

JUDGMENT DATE : 18 December 2007

JURISDICTION : Common Law

JUDGMENT OF : Walmsley AJ

DECISION : Judgment in favour of the plaintiffs for $10,000 and interest from 9 November 2001.; Costs reserved.

CATCHWORDS : LEGAL PROFESSION – negligence – conveyancing transaction – where defendants retained by plaintiffs on conveyancing transaction – where plaintiffs purchaser of land – where owner-builder work undertaken on land prior to sale – where contract for sale required certificate of insurance for owner-builder work to be attached – where certificate of insurance for owner-builder work not attached to contract – where plaintiffs had a right to rescind contract due to absence of certificate of insurance for owner-builder work – where defendants failed to ensure that contract for sale had certificate of insurance for owner-builder work attached – where defendants failed to advise plaintiffs of right to rescind contract – where owner-builder work on land defective – where plaintiffs obtained pre-purchase inspection report – where defendants admitted breach of duty - TORTS – negligence – causation – purchase of land – whether plaintiffs would have proceeded with purchase had they known of right to rescind contract – where plaintiffs purchased property to redevelop and sell in short term – where vendors in straitened financial circumstances - TORTS – negligence – damages – measure of damages – solicitor negligence in conveyancing transaction – whether plaintiffs able to recover cost of rectifying defects in owner-builder works – whether measure of damages amount that would have been recoverable under insurance policy for owner-builder work – whether damages limited to diminution of value of land – whether measure of damages amount by which plaintiff could have negotiated reduction in purchase price for absence of certificate of insurance for owner-builder work - TORTS – negligence – contributory negligence – whether plaintiffs ought to have obtained more detailed pre-purchase inspection report - TORTS – negligence – failure to mitigate – where plaintiff failed to sell property upon discovering defects – where plaintiff failed to sue vendors – where vendors unable to be located - EVIDENCE – admissibility – torts – negligence – causation – where factual causation dependant on what plaintiff would have done if properly advised – inadmissibility of statements by plaintiffs regarding what they would have done if properly advised – whether evidence by non-plaintiff as to what he would have done but for the defendant's negligence admissible – Civil Liability Act 2005, s 5D(3)(b)