ASLAN v SHEHADIE [1998] NSWCA 19

ASLAN v SHEHADIE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and GILES JJA 15 December 1998, 17 December 1998

[1998] NSWCA 19

Procedure — interpreter — trial judge's discretion whether used — no error in exercise of discretion — Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 — Evidence Act 1995, s30 not relied on.

Negligence — solicitor — advice that will revocable — whether negligent in failing to advise — whether if had advised non-revocation agreement would have been made — even if negligent, on facts not established non-revocation agreement would have been made — no loss.

Powell JA I agree with Giles JA. Beazley JA I agree with Giles JA.

Giles JA Mr Albert Cox owned properties at 70 Redfern Street, Redfern, 40 Baptist Street, Redfern, and 108 Great Buckingham Street, Redfern. He lived at 108 Great Buckingham Street, Redfern, and a Mr Elias Napti lived either there or at 70 Redfern Street, Redfern. Rooms in the properties were let to tenants. Mr Cox and Mr Napti were elderly, in their eighties, and had apparently served together in the Second World War and been friends for many years. Mr Napti had provided some money to help Mr Cox buy 40 Baptist Street, Redfern and 108 Great Buckingham Street, Redfern.

The appellant, Mr Ahmed Asian, who was some years younger than Mr Cox and Mr Napti, had formerly been a partner of Mr Napti in Lebanese bread shop businesses. He had known Mr Cox from soon after he came to Australia in 1968. The appellant had also provided some money to help Mr Cox buy 108 Great Buckingham Street, Redfern.

In 1986 the respondent, Mr Michael Shehadie, acted as the appellant's solicitor in two transactions. In April 1986 he prepared agreements for lease under which Mr Cox agreed to lease the three properties to the appellant for terms of ten years at rentals of $400 per property per month, on the basis that the appellant would meet all outgoings and pay for repairs and maintenance and that rooms would be provided for Mr Cox and Mr Napti. In August 1986 he prepared forms of will for execution by Mr Cox, Mr Napti and the appellant under which each appointed the other two parties as his executors and trustees and left everything to them or (probably) the survivor of them.