Lucantonio v Kleinert & ors [2011] NSWSC 753

Supreme Court New South Wales

Medium Neutral Citation: Lucantonio v Kleinert & ors [2011] NSWSC 753 Hearing dates: 3 to 14, 20 August, 18 September, 13 & 23 October, 4 December 2009 Decision date: 20 July 2011 Jurisdiction: Common Law Before: Brereton J Decision: Plaintiff fails to establish liability of first, second and third defendants in negligence. Catchwords: NEGLIGENCE - Architect - whether negligently advised that building could not be constructed in compliance with plans in DA with which property purchased by plaintiff - where advice only established to be incorrect after iterative development of plans in context of subsequent litigation and as a result of incorporation of apparently innovative design - architect did not depart from standards of practice of reasonably competent and prudent architects - no breach of duty of care. MISLEADING AND DECEPTIVE CONDUCT - Architect's advice said to be misleading - whether opinion that building could not be constructed in compliance with plans in DA - professional opinion recognisable as such not misleading by reason of proving incorrect so long as genuinely held and a basis for it exists - opinion genuinely held - opinion not without grounds - only established to be incorrect after iterative development of plans in context of subsequent litigation as a result of incorporation of apparently innovative design - not unreasonable that architect did not discern this at time opinion proffered - no misleading and deceptive conduct. BARRISTERS - Professional negligence - where barrister said to have breached duty of care by advising institution and subsequently not advising discontinuance of proceedings for specific performance with compensation in circumstances that purchaser had architect's advice that building could not be constructed in compliance with plans in DA with which property purchased and various conditions of contract limited purchaser's rights in that respect - where proceedings continued after judge on application to extend operation of caveat holds no serious question to be tried on basis of one condition - arguable case to contrary on that condition - where claim for specific performance with compensation very weak but proceedings included well arguable claims for misleading and deceptive conduct and for return of deposit - barrister did not in relevant respects depart from standard expected of a barrister of reasonable competence and prudence - no breach of duty of care - in any event, properly advised plaintiff would have continued proceedings to claim damages under Fair Trading Act - causation could not have been established. SOLICITORS - Professional negligence - whether breached duty of care by advising institution and subsequently not advising discontinuance of proceedings for specific performance and compensation - solicitor receives advice from barrister that claim is arguable - not glaringly wrong - solicitor entitled to rely on advice - no breach of duty of care. SOLICITORS - Professional negligence - solicitor for purchaser receives notice to complete from vendor - reasonably competent and prudent solicitor in such circumstances obliged to discuss courses of action and their advantages and disadvantages with client to enable client to make informed decision - solicitor fails to give advice in timely manner - breach of duty established - causation - properly advised plaintiff would have been presented with options to complete purchase and sue for damages, or refuse to complete and bring actions for misleading and deceptive conduct under Fair Trading Act, s 42 and for return of deposit under Conveyancing Act s 55(2A) - former option less legally risky, latter more commercially attractive to plaintiff - contemporaneous statements and surrounding circumstances evince that particular plaintiff, properly advised, would still have taken more commercial option - causation not established. Legislation Cited: (NSW) Civil Liability Act 2002, s 5D (NSW) Conveyancing Act 1919, s 55(2A) (NSW) Environmental Planning and Assessment Act 1979, s 96 (NSW) Fair Trading Act 1987, s 42 Cases Cited: Batey v Gifford (1997) 42 NSWLR 710 Beard v Drummoyne Municipal Council (1969) 71 SR (NSW) 250 Boland v Yates (1999) 74 ALJR 209 Cook v S [1966] 1 All ER 248 Dainford Ltd v Lam (1985) 3 NSWLR 255 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Heenan v Di Sisto (2008) 13 BPR 25 Heydon v NRMA Ltd (2000) 51 NSWLR 1 James v ANZ Banking Group Ltd (1986) 64 ALR 347 Jenmain Builders Ltd v Steed & Steed [2000] Lloyd's Rep PN 549 Lucantonio v Ciofuli [2002] NSWSC 509 Lucantonio v Ciofuli [2003] NSWSC 1058 Lucantonio v Concord Council [2001] NSWLEC 52 Lucantonio v Kleinert [2009] NSWSC 853 Makita v Sprowles (2001) 52 NSWLR 705 Notaras v Sly & Weigall [2005] NSWCA 275 Saif Ali v Sydney Mitchell & Co (a firm) and Ors [1980] AC 198 Tambel v Field (1982) 2 BPR 9593 Tiplady v Gold Coast Carlton Pty Ltd (1984) 3 FCR 426 Yates Property Corporation v Boland (1998) 85 FCR 84 Category: Principal judgment Parties: Dean Lucantonio atf The Lucantonio Family Trust (first plaintiff) Dino Lucantonio (second plaintiff) Jaime Kleinert (first defendant) Otto Stichter (second defendant) Darryl Leslie Warren (third defendant) Representation: Counsel: Mr G Laughton SC w Ms D Christofis (plaintiffs) Mr R Darke SC (first defendant) Mr G Curtin (second defendant) Mr M Ashhurst SC (third defendant) Solicitors: Gells Lawyers (plaintiffs) Kennedys (first defendant) DLA Phillips Fox (second defendant) McCabe Terrill Lawyers (third defendant) File Number(s): 2004/176817