TANNA v DEUTSCHE BANK (ASIA) AG and ORS; SAAD and ANOR v BARWICK and ORS [1998] NSWCA 223

TANNA v DEUTSCHE BANK (ASIA) AG; SAAD v BARWICK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and POWELL JJA 5 March 1998, 15 September 1998

[1998] NSWCA 223

Negligence — Solicitor and client — Incorrect or inadequate advice or information — Mortgage transaction — Solicitors acting for borrowers — Solicitors alleged to have given incorrect or inadequate advice or information — Borrowers suffering loss — Whether borrowers merely obliged to prove reliance on advice or information — Whether borrowers obliged to show loss due to incorrect advice or information.

Priestley JA Powell JA, in his reasons which I have had the benefit of reading in draft, has comprehensively set out the facts and the arguments in these appeals and his reasons for thinking they should be dismissed.

I agree generally with Powell JA's reasons for not accepting the appellants' submissions that the trial judge was in error in finding that the appellants had not discharged the onus of proof on the question whether the respondents were in breach of their alleged duty to the appellants.

In agreeing with both the trial judge and Powell JA in respect of this issue, I have particularly in mind the evidence given by Mrs Hetherington in para20 of her affidavit sworn 17 August 1995 and the fact that there appears to have been no real challenge to this evidence at the trial (the details on this point are set out at p18-p20 of Powell JA's reasons). Although the trial judge does not appear to have expressed any particular reliance on this aspect of the case in reaching his conclusions, it seems to me to be something strongly confirmatory of his view of the facts, which this court is entitled to take into account in dismissing the appeal.

Since the appeals must fail because breaches of duty by the respondents were not established, it seems to me to be sufficient for the case to be decided on that basis alone, without the need to discuss the other points (reliance and causation) argued for the appellants.