Secured Lending 1 Pty Ltd v Mahmassani [2021] NSWSC 811

Supreme Court New South Wales

Medium Neutral Citation: Secured Lending 1 Pty Ltd v Mahmassani [2021] NSWSC 811 Hearing dates: 15 – 19 March 2021 Date of orders: 7 July 2021 Decision date: 07 July 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. The amended cross-claim is dismissed. 2. The cross-claimants are to pay the first and second cross-defendants' costs. Catchwords: OCCUPATIONS – legal practitioners – duties and liabilities – duties to client – cross-claimants asked by son to help repay his debts by using cross-claimants' home as security – short term loan where exit strategy was sale of security property to son - default under loan agreement and mortgage – where proceedings by lender compromised – cross-claim against solicitor - whether solicitor failed to explain loan agreement and mortgage to cross-claimants – whether solicitor was negligent and breached retainer – where in absence of a letter written following client conference solicitor recorded advice in a file note – where satisfied that solicitor explained nature of loan and consequences if loan not repaid – where failure to complete documents in approved form not evidence of negligence – where even if breach of duty, causation not established as cross-claimants would have gone ahead with arrangement –whether conduct of solicitor was unconscionable – where conduct not unconscionable simply because clients were in disadvantaged position – whether conduct of solicitor was misleading and deceptive – cross-claim dismissed Legislation Cited: Civil Liability Act 2002 (NSW) s 5D Contracts Review Act 1980 (NSW) Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (NSW) r 11 Real Property Act 1900 (NSW) s 57 Cases Cited: ANZ Banking Group Ltd v Bragg (No 3) [2017] NSWSC 208 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Banco Exterior Internacional v Mann (1955) 1 All ER 936 Bristol and West Building Society v Mothew [1998] Ch 1 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Girardet v Crease & Co (1987) 11 BCLR (2d) 361 Meakin v R [2018] NSWCCA 288 Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Permanent Building Society v Wheeler (1994) 14 ACSR 109 Provident Capital Ltd v Papa [2013] NSWCA 36 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Studer v Boettcher [2000] NSWCA 263 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Nil Category: Principal judgment Parties: Khaled Mahmassani (First Defendant/First Cross-Claimant) Ghada Mahmassani (Second Cross-Claimant) Ammar Jamal-Eddine (First Cross-Defendant) Concordia Legal Pty Ltd (Second Cross-Defendant) Representation: Counsel: A Tibbey (Defendant/Cross-Claimants) D Priestley SC (Cross-Defendants)