The Federation Press

Professional Liability and Property Transactions

Overview

This book examines in detail the principles underpinning professional liability both at common law (tort and contract) and by reason of statute (Trade Practices Act and Fair Trading Acts) in the context of property professionals. It includes comprehensive coverage of the Civil Liability Acts.

The early chapters deal with the sources of professional liability. They include an analysis of remedies for breach of professional obligations generally and of procedural issues, such as limitation of actions, expert evidence, apportionment and contributory negligence in the setting of professional liability.

The heart of the book is original and accessible material on the measure of damages as it relates to the liability of the various professionals who become involved in property transactions. There are further chapters on the liability of lenders and local authorities as organisations commonly involved.

It is an essential reference for any barrister, solicitor or other professional directly or indirectly involved in litigation in this area, as well as property lawyers.

With a Foreword by The Hon Justice Ian Callinan.

Reviews

Christensen and Duncan review in a comprehensive way the sources of professional liability, limitations and remedies. ... the core of the book lies in its separate chapters describing liability for the different relevant professional groups -- solicitors, real estate agents, valuers, accountants, construction professionals, lenders and local authorities. These chapters continue the concise yet thorough approach, incorporating many case examples. ...
No doubt the book will provide a valuable academic and student reference, and be of great value in the property transaction field, particularly for advice on legal exposure, risk management and litigation. ...it is also useful for those of us who are not practising in these areas but are called upon from time to time to advise on or speak about professional negligence claims generally, and more particularly those arising from property transactions. - Bill Madden, Precedent, No 70, September/October 2005

This is a well-written, informative and highly professional work. - Law Institute Journal (Victoria), September 2005

The authors of this valuable treatise on the liability of professionals have been ambitious in attempting to document the many recent developments in the law in this area and in embarking upon a survey of the obligations of particular professionals whose work has received comparatively little attention in the past.
The ambitions of the authors have been realised. The liability of solicitors, real estate agents, valuers, accountants, construction professionals, lenders and local authorities has been the subject of comprehensive and separate treatment. This is appropriate. In practice, as opposed to general theory and principle, the risk that these professionals run, and the ways in which liability against them may be established, differ.
All relevant aspects of professional obligations are covered as well as the impact of trade practices legislation in its extended application to them. Vexed questions of concurrent and joint liability are fully treated.
The authors have taken care to construct this work in a useful and accessible format. From defining professionalism, they move naturally and logically to a discussion of sources of professional liability including the fiduciary duties which arise, in some circumstances, independently of contractual and other obligations owed to clients.
Readers will find especially helpful the discussion on the measure of damages and on how damages may vary from professional to professional. This discussion takes account of the serious implications for all professionals and their insurers, problems in relation to whom are current and pressing.
This book makes a notable contribution to academic writing on a subject in which the community is showing an increasing interest, an interest which is reflected in the ingenuity and number of claims made by professionals on other professionals on behalf of members of an increasingly importunate society. The book is a book for practitioners also. Its arrangement and contemporaneity, and the depth of the research undertaken by its authors, will ensure that it will find a place on the shelves of all serious practitioners of the professions with which it deals. - The Hon IDF Callinan AC, A Justice of the High Court of Australia, 29 April 2004, (Foreword)

Christensen and Duncan have every reason to be proud of a book that tackles one of litigation’s few growth areas ...
Although the book’s title refers to the liability arising from negligence of professionals in property transactions, the first part of its examination of general issues, such as a professional’s duty of care, causes of action arising from misleading and deceptive conduct, fiduciary duties and, of course, the remedies available to those claiming to have suffered loss, would be useful to anyone dealing with a negligence case.
The second part deals specifically with the professions most commonly associated with land deals: solicitors (a group whose negligence has resulted in the largest chapter in the book!), land valuers, local councils, lenders, construction professionals, accountants, and surprisingly to this reviewer at least, real estate agents. Did you know that a real estate agent is under an obligation to make enquiries regarding the purchaser’s ability to complete the contract?
Each of the chapters dealing with the specific professional areas sets out that profession’s generally accepted standard of conduct, fiduciary duties and remedies. The book has a straightforward, practical approach that will make it a must for almost anyone practising in the area of professional negligence, especially those who deal in the world of property transactions – and particularly if you are looking for inspiration as to whom to sue! - Troy Anderson, Law Society Journal (NSW) , Nov 2004

Table of Contents

Introduction

Professionalism

General Liability

Sources of professional liability
Limitation of professional liability

Remedial Aspects of Professional Liability

Remedies for breach of professional obligations
Procedural issues

Professionals Involved in Property Transactions

Solicitors
Real estate agents
Valuers
Accountants
Construction professionals

Professionals Associated with Property Transactions

Lenders
Local authorities

Table of cases
Table of statutes
Index

Of interest...