Posts by robert

Real estate agents: mere conduits?

Reasonable purchasers in the position of the Hyders would have taken from their inspection of the property, the relevant marketing material and their oral communications with McGrath that the information that it provided in respect of parking was obtained from the vendor and that McGrath was not guaranteeing its accuracy.  

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Preliminary discovery

APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination of the merits of the claim at an interlocutory stage CIVIL PROCEDURE – preliminary discovery…

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Police powers and duties: incoherence and incompatibility; Summary dismissal

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – primary judge summarily dismissed proceedings on basis that defendant did not owe plaintiffs a duty of care – where weight of current authority against existence of duty of care – where argument available that common law should be extended to recognise duty of care –…

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Solicitor's duties: retainer etc

TORTS — Negligence — Professional Negligence — Solicitor and Client — No formal retainer TORTS — Negligence — Professional Negligence — Solicitor and Client — No formal retainer — the plaintiff solicitor alleged that the defendant solicitor failed to advise the plaintiff about personal mortgages in various loan agreements — the plaintiff has not established…

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"Means and includes"

  Council of the Law Society of New South Wales v Bouzanis [2017] NSWCA 330 I turn now to the definition of “trust money” in s 243. The definition is of the not unfamiliar kind that begins with a broad statement (“means”) to which is added (“and includes”) additional items that may not otherwise be…

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Vicissitudes and life expectancy

Section 13 of the Civil Liability Act 2002 (NSW) applies to damages for future economic loss both in respect of “future earning capacity” and “other events on which the award is to be based”. The latter category includes damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses. Sub-section (2)…

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Negligence – need to deal with each suggested precaution by reference to s. 5B(1)

NEGLIGENCE – occupier’s liability – customer trips and falls in appellant’s premises while entering a children’s play area – play area had raised shock-absorbent surface – primary judge found failure to warn and failure to make surface of play area level with remainder of premises were breaches of duty which caused the injury – findings…

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Loss of commercial opportunity

CONTRACT – breach – solicitor’s retainer – failure to pursue proceedings against third party – loss of commercial opportunity of recovery – proceedings later successful – no recovery due to third party’s bankruptcy – whether solicitor’s breach caused loss of valuable opportunity – whether plaintiff entitled to damages – assessing damages for loss of valuable…

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