MILLER and ANOR v BECK [1998] NSWCA 142

MILLER v BECK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, POWELL JJA and FITZGERALD AJA 7 September 1998, 23 September 1998

[1998] NSWCA 142

Negligence — Solicitor and client — Incorrect or inadequate advice — Purchase of residential property — Solicitor acting for purchasers — Solicitors alleged to have given inadequate advice — Property alleged to incorporate unauthorised building works — Purchasers seeking to recover damages — Proper measure of damages.

Meagher JA I agree with Powell JA.

Powell JA By Summons filed 16 June 1998 the Claimants seek leave to appeal from a Judgment delivered and verdict entered by Patten DCJ on 13 March 1998 and from a further Judgment delivered and Orders made as to costs by his Honour on 19 May 1998 in proceedings in which the Claimants had sought to recover from the Opponent - who had acted as their solicitor in relation to a conveyancing transaction - damages in relation to what was alleged to be the Opponent's negligent failure to advise them properly in relation to that conveyancing transaction.

The Claimants' case was that, in about May 1990, they had retained the Opponent to act on their behalf in relation to the purchase of a residential property which was to become their home and, in connection with that purchase, the grant to a Building Society of a mortgage to secure the repayment by the Claimants of a loan which was to be made available to them in order to enable them to complete the purchase. The Claimants' case further was that, after they had retained the Opponent, and after the Building Society had approved the making of the loan to which I have just referred, but before the Complainants had entered into the contract to purchase the property, the Opponent, who was also retained by the Building Society to act for it in relation to the proposed mortgage, received from the Building Society a copy of a valuation summary which valuation summary contained the following (inter alia):