The Court of Appeal decision in Lucantonio v Stichter provides a refresher on how a Court should determine if a person’s breach of duty caused harm under the Civil Liability Act 2002 (“Act”).
We represented the defendant in the case, who was Mr Lucantonio’s legal advisor on a failed purchase of a development site. Mr Lucantonio entered into a contract for sale to purchase the site that had an approved Development Application attached to it. Issues were identified in the DA and the contract for sale did not proceed. Mr Lucantonio alleged that the defendant failed to give timely advice regarding a notice to complete and that this prevented him from completing the contract.
Brereton J of the Supreme Court of NSW found the defendant breached his duty of care by failing to provide timely advice regarding the notice to complete, but held on the facts before him that was not the cause of Mr Lucantonio’s failure to complete the contract for sale. Mr Lucantonio appealed the decision to the Court of Appeal.
The Court of Appeal unanimously upheld Brereton J’s decision and dismissed the appeal.
In doing so, the Court confirmed that the question of “whether or not a negligent act caused the alleged loss” has to be determined subjectively in light of all the relevant facts and circumstances having regard to s.5D(3)(a) of the Act. The Court also noted that the negligence must have been a necessary condition of the harm occurring to satisfy the existence of factual causation under section 5D(1)(a) of the Act. It was said the determination is entirely factual and the relevant facts were required to be established by Mr Lucantonio on the balance of probabilities as required by s.5E of the Act.
Click here if you would like to read the Court of Appeal’s decision.