North Coast Conveyancing Pty Ltd v Bradbury [2015] NSWCA 361

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: North Coast Conveyancing Pty Ltd v Bradbury [2015] NSWCA 361 Hearing dates: 6 October 2015 Decision date: 23 November 2015 Before: Basten JA at [1]; Leeming JA at [40]; Emmett AJA at [41] Decision: (1) Grant the applicant leave to appeal from the judgment and orders in the District Court.

(2) Allow the appeal and set aside orders (1) and (2) entered on 24 February 2015 and order (1) entered on 26 March 2015.

(3) Refer the proceedings to a Registrar of the Court to conduct a mediation at a time to be fixed by the Principal Registrar.

(4) Direct that the mediation occur, if possible, by 23 December 2015 and no later than 29 January 2016.

(5) In the event that no settlement has been reached by 30 January 2016, remit the matter to the District Court for a retrial, limited to the claim for damages calculated by reference to the forfeited option fee and interest thereon.

(6) Direct that the costs of the first trial be dealt with in the course of the mediation and otherwise be in the discretion of the trial judge on a retrial.

(7) Order that the respondents pay the appellant's costs in this Court.

(8) Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: TORTS – negligent advice – causation – conveyancer defendant advised plaintiffs in relation to purchase of property – plaintiffs signed option for twelve months – plaintiffs did not exercise option in time and forfeited the option fee – conveyancer admitted breach of duty with respect to advice on option – whether trial judge made findings with respect to causation – whether but for the negligent advice the plaintiffs would have entered into the option agreement – whether but for the negligent advice the plaintiff would have exercised option – whether loss of option fee caused by negligent advice – whether evidence sufficient to dispose of the matter on appeal Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E Civil Procedure Act 2005 (NSW), Pt 4 Conveyancing Act 1919 (NSW), s 55 District Court Act 1973 (NSW), s 127 Uniform Civil Procedure Rules 2005 (NSW), r 20.5; Pt 20, Div 1 Cases Cited: Mouti v Nguyen [2015] NSWCA 93 Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 Category: Principal judgment Parties: North Coast Conveyancing Pty Ltd (Applicant) Wayne Bradbury and Narelle Bradbury (Respondents) Representation: Counsel: Mr D S Weinberger (Applicant) Mr F Austin (Respondent)