Greer v Pickering [2015] NSWSC 1131

Supreme Court New South Wales

Medium Neutral Citation: Greer v Pickering [2015] NSWSC 1131 Hearing dates: 4 and 5 August 2015 Decision date: 13 August 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. Judgment for the second defendant.

2. Unless an application for a different order is made in writing to my Associate within seven days hereof, order the plaintiff to pay the second defendant's costs of the proceedings. Catchwords: TORT – professional negligence – plaintiff purchased property from purportedly moribund vendor for reduced price - contract for sale permitted vendor to live in property as tenant until death or permanent vacation – tenant operated clandestine methylamphetamine laboratory on property – plaintiff required to remediate property – tenant refused to vacate – whether solicitor negligent for failure to include express term – whether alleged negligence caused or contributed to delay and expense in evicting tenant – whether plaintiff was contributorily negligent or failed to mitigate loss by failing to take urgent steps to evict tenant – no evidence to establish that solicitor was asked to include express term as alleged – solicitor not negligent – causation not established – apportionable claim - no loss attributable to solicitor LANDLORD AND TENANT – term implied by s 84 Conveyancing Act 1919 (NSW) CONTRACT – breach of retainer – Part 1 of Civil Liability Act 2005 (NSW) applies – apportionable claim – no breach of retainer Legislation Cited: Civil Liability Act 2002 (NSW), Part 1, Part 4, ss 5A, 5B, 5C, 5D, 5E, 5R, 5S, 34, 35 Conveyancing Act 1919 (NSW), ss 66W, 74, 84, 118, 129 Criminal Assets Recovery Act 1990 (NSW) Landlord and Tenant Act 1899 (NSW), Part 4, s 2A Local Government Act 1993 (NSW), s 124 Real Property Act 1900 (NSW) Residential Tenancy Act 2010 (NSW), s 8 Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1894) 6 R 67 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Commonwealth v Amann Aviation (1991) 174 CLR 64 Dare v Pulham (1982) 148 CLR 658 Hudson Investment Group Ltd v Atanaskovic [2014] NSWCA 255 Jones v Dunkel (1959) 101 CLR 298 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Reinhold v New South Wales Lotteries Corporation (No. 2) [2008] NSWSC 187; 82 NSWLR 762 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Category: Principal judgment Parties: Annette Queeta Greer (Plaintiff) Brian Beresford (First Defendant) Garry Pickering (Second Defendant) Representation: Counsel: J McDonald (Plaintiff) A Zahra (Second Defendant)