Williams v Pagliuca [2009] NSWCA 250

New South Wales Court of Appeal

CITATION: Williams v Pagliuca [2009] NSWCA 250

HEARING DATE(S): 28 July 2009

JUDGMENT DATE: 19 August 2009

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 55; Sackville AJA at 56

(1) Appeal allowed in part. DECISION: (2) Orders 2 and 3 made on 11 August 2008 set aside, and in lieu thereof judgment for the Vendors against the Solicitor in an amount of $55,500, and the Vendors are awarded interest calculated from 4 November 2005 to 31 July 2007 in the amount of $23,844, such orders to take effect as at 11 August 2008. (3) Vendors to pay the Solicitor's costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.

CATCHWORDS: LEGAL PRACTITIONERS – Duty of skill and care – Solicitor acting for vendor and purchaser – Solicitor fails to ensure exchanged counterparts identical – Vendor and purchaser, not knowing this, agree to substitute different property – Solicitor prepares new contract – Vendor and purchaser disagree as to terms of new contract – Purchaser withdraws from transaction – Whether solicitor in breach of duty in relation to contract for substituted property – Whether loss caused by any such breach. - DAMAGES – Solicitor breaches duty of care to vendor of property in failing to ensure exchanged counterparts identical – Purchaser subsequently withdraws from transaction – Purchaser alleges misrepresentation by estate agent as to size of bedroom – Damages assessed for loss of chance.

LEGISLATION CITED: Fair Trading Act 1987, ss 41, 42, 45, 70 Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 CASES CITED: Hammond v Minister for Works (1992) 8 WAR 505 Larking v Great Western (Nepean) Gravel Limited [1940] HCA 37; (1940) 64 CLR 221 Winnote Pty Limited v Page [2006] NSWCA 287; (2006) 68 NSWLR 531