Sam George Sarkis v Samuel Mbakwe [2008] NSWDC 220

New South Wales District Court

CITATION: Sam George Sarkis v Samuel Mbakwe [2008] NSWDC 220

HEARING DATE(S): 2/9/08, 3/9/08, 4/9/08, 8/9/08, 9/9/08 and 11/9/08 EX TEMPORE JUDGMENT DATE : 11 September 2008

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraphs 85, 87 and 92 of Judgment

CATCHWORDS: Action for negligent mis-statement - Examination of relationship between Plaintiff and Defendant - Defendant as financial adviser recommends the Plaintiff make loans to third party - Plaintiff acts on advice and suffers loss.

LEGISLATION CITED: Fair Trading Act 1999 Uniform Civil Procedure Rules 2005

Jones v Dunkel (1959) 101 CLR 298 Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 at 249 CASES CITED: Hedley Byrne & Co Limited v Heller and Partners Limited (1964) AC 465 at 503 Mutual Life & Citizens Assurance Co Limited v Evatt (1968) 122 CLR 556 at 571 L Shaddock and Associates Pty Limited v Parramatta City Council (No 1) (1981) 150 CLR 225 at 250-251 Tepko Pty Limited v Water Board (2001) 206 CLR 1 at 23

PARTIES: Sam George Sarkis (Plaintiff) Samuel Mbakwe (Defendant)

FILE NUMBER(S): 159/07

COUNSEL: M Rollinson (Plaintiff) N O'Brart (Defendant)

JUDGMENT

1 The plaintiff in these proceedings, Sam George Sarkis, has brought an action claiming damages against the defendant, Samuel Mbakwe. The statement of claim was filed on 19 January 2007, and a defence to the statement of claim was filed on 4 May 2007.

2 The plaintiff alleges that in early 2002 the defendant represented to him that the plaintiff had an opportunity to lend funds to enterprises associated with Mr Robert Orehek (I will refer to him as Orehek throughout this judgment), that such loans would attract interest of twenty-five per cent over a twelve month period, that it would be safe and secure to make such a loan, that Orehek was a successful property developer, that he had in the region of $20 million worth of property, he would have no difficulty in repaying any loan made by the plaintiff to him and that the plaintiff should therefore lend money to him. The plaintiff says that as a result of acting on that representation he lent $150,000 repayable after twelve months unsecured to Orehek and companies associated with him.