Bassal v Savills (NSW) Pty Limited [2019] NSWSC 696

Supreme Court New South Wales

Medium Neutral Citation: Bassal v Savills (NSW) Pty Limited [2019] NSWSC 696 Hearing dates: 9–10, 13–17, 20–23, 28–31 August 2018 Decision date: 24 July 2019 Jurisdiction: Common Law Before: N Adams J Decision: (1) Judgment for the defendant (2) The plaintiffs are to pay the defendant's costs Catchwords: CONTRACTS – joint venture agreement for construction of outlet shopping centre – where joint venture partners signed Exclusive Leasing Agency Agreement with commercial real-estate agency – where agreement was to identify appropriate tenants and refer them to the JV partners for approval – where shopping centre only 55% let at opening – where joint venture partners defaulted on their loans and joint venture failed – whether real-estate agency failed to introduce tenants – whether real-estate agency breached implied term of care, skill and diligence – whether failure to implement any or any adequate leasing strategy – whether breach caused damage – no breach established – whether even if breaches established there was causation – where quantum of economic loss not properly explained

NEGLIGENCE – scope of duty – whether co-extensive – claim that shopping centre would be 90% leased at opening with high-end outlet retailers – whether real estate agency had duty to provide specific outcome – whether failure to take precautions – whether factual causation established in any event Legislation Cited: Civil Liability Act 2001 (NSW) Pt 1A, ss 5A, 5B, 5D, 50 Corporations Act 2001 (Cth) Pt 5.7B Environmental Planning and Assessment Act 1979 (NSW) s 96 Evidence Act 1995 (NSW) s 79(1) Retail Leases Act 1994 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Sch 7 Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Bassal v Savills (NSW) Pty Limited [2015] NSWSC 1779 Campbell v Campbell [2015] NSWSC 784 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 352; [1982] HCA 24 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 522; [1991] HCA 12 Platform Funding Ltd v Bank of Scotland Plc (formerly Halifax Plc) [2009] QB 426; [2008] EWCA Civ 930 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Category: Principal judgment Parties: Terry Bassal (First Plaintiff) Albert Moutalb Bassal (Second Plaintiff) Savills (NSW) Pty Limited (Defendant) Representation: Counsel: Ms M Painter SC / Mr G Stapleton (Plaintiffs - until 16 August 2018 and Mr Terry Bassal self represented for both plaintiffs thereafter) Mr M McCulloch SC / Mr T Marskell (Defendant)