NEVILLE v LICARDY [1996] NSWCA 387

NEVILLE v LICARDY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, POWELL JA and COLE JA 21 March 1996

[1996] NSWCA 387

Handley JA. (On application for leave to amend notice of appeal. See page 23 of transcript.)

On this appeal coming on for hearing this morning Mr Alexis for the appellants, as foreshadowed in his written submissions received by the court on 20 March, applied for leave to amend the notice of appeal to add grounds 6 and 7 as follows:

6. Alternatively, his Honour erred in finding that the respondent had no duty of care to advise or warn the appellants in the circumstances of matters that may prejudice their equitable interest in the property at 147 Belgrave Esplanade, Sylvania Waters or may otherwise cause them economic loss.

7. His Honour erred in determining the liability of the respondent only by reference to his knowledge of matters in breach of trust and not by reference to:

(a) The conflict of interest in the respondent simultaneously acting for Pewiti Pty Ltd and Mrs M La Camera on the one hand and the appellants on the other, and(b) the facts that the respondent was actually aware of which, although not establishing knowledge of a breach of trust, established that the appellants" equitable interest in the property situate at 147 Belgrave Esplanade, Sylvania Waters may be prejudiced and/or that the appellants may suffer economic loss.

This application was opposed by Mr Jacobson QC on grounds foreshadowed in his outline of submissions, also received by the court yesterday.

Mr Alexis fairly conceded that grounds 6 and 7, as sought to be added to the notice of appeal, did not raise matters which had been pleaded in the plaintiffs" statement of claim. The claims as pleaded which were pressed at the trial depended upon the existence of an express trust of the property at Sylvania Waters in favour of the plaintiffs and two retainers by the alleged trustee Pewiti Pty Ltd of the respondent solicitor, Mr Licardy, to act in relation to the affairs of the company which involved mortgaging or re-mortgaging the Sylvania Waters property. The common law duty of care relied upon by the plaintiffs, as pleaded, was said to arise out of the relationship of proximity between the solicitor, acting under one or other or both of these retainers, and the plaintiffs, as alleged beneficiaries under an express trust of the Sylvania Waters property. The statement of claim also pleaded statutory causes of action under the Trade Practices Act and the Fair Trading Act.