Ibrahim v Pham [2007] NSWCA 215

New South Wales Court of Appeal

CITATION: Ibrahim v Pham [2007] NSWCA 215

HEARING DATE(S): 5, 6, & 7 June 2007

JUDGMENT DATE: 21 August 2007

JUDGMENT OF: Hodgson JA at 1; Santow JA at 2; Campbell JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: LEGAL PROFESSION – negligence – where solicitor retained to advise on mortgage and loan contract – where solicitor not retained to provide advice on proposed investment – whether solicitor had knowledge of unique risks posed by investment – where investment subsequently failed – whether solicitor liable for failure to advise on investment - EQUITY – fiduciary obligations – solicitor-client relationship – conflict of interest – whether conflict between solicitor's duty and interest – where solicitor had prior business dealings with other party to investment contract – whether solicitor dissuaded client from seeking independent legal advice – whether solicitor ought to have refused to act for client - EQUITY – fiduciary obligations – solicitor-client relationship – conflict of interest – reference for independent legal advice – whether reference for independent legal advice adequate – whether independent legal adviser independent - TORTS – negligence – duty of care – scope of duty of care – solicitor-client relationship – whether retainer limited or general - TORTS – negligence – essentials of action for negligence – causation – where solicitor failed to advise on investment – where investment subsequently failed – whether solicitor's failure to advise caused loss – whether client relied on solicitor's advice – where investor so highly keen to invest that investment was inevitable - CORPORATIONS – managed investment schemes – requirement for registration – where scheme not registered – whether investment contracts in unregistered scheme illegal – consequences of operating unregistered scheme – exemptions from registration requirements – Corporations Law, Ch 5C - EVIDENCE – admissibility and relevance – tendency evidence – where trial Judge rejected tendency evidence – whether trial Judge erred in rejecting evidence – whether evidence was "tendency evidence" – whether evidence provided evidence of "any relevant or material tendency" – whether evidence had "significant probative value" – whether admission of evidence would result in "undue waste of time" – notice of intention to adduce tendency evidence – Evidence Act 1995, ss 97, 99, 135 - EVIDENCE – witnesses – expert witness – solicitor expert witness – where expert witness's report based on erroneous assumptions – failure of trial judge to accept expert witness's evidence – whether trial judge erred in failing to accept expert witness's evidence - EVIDENCE – witnesses – failure to call witness – whether witness one expected to be called by one party rather than the other – adverse inferences – Jones v Dunkel (1959) 101 CLR 298 - APPEAL AND NEW TRIAL – appeal – appeal by way of rehearing – interference with Judge's findings of facts – credit findings – whether findings "glaringly improbable" or "contrary to compelling inferences" – Fox v Percy (2003) 214 CLR 118 - APPEAL AND NEW TRIAL – appeal – appeal by way of rehearing – insufficiency of reasons – whether trial Judge's reasons insufficient – whether appellant denied procedural fairness - APPEAL AND NEW TRIAL – appeal – appeal by way of rehearing – admission of fresh evidence – whether fresh evidence should be admitted on appeal - APPEAL AND NEW TRIAL – appeal – appeal by way of rehearing – points and objections not taken below – where appellant failed to put point below – whether point able to be put on appeal - PROCEDURE – courts and judges generally – delay in delivery of judgment – whether delay in delivery of judgment occasioned a miscarriage of justice – where delay between hearing and delivery of judgment less than eight months – whether error in judgment manifest - TRADE AND COMMERCE – definitions and general – solicitors – whether solicitor engaged in "trade or commerce" – Fair Trading Act 1987, Trade Practices Act 1975 (Cth) - TRADE PRACTICES – consumer protection – misleading and deceptive conduct – solicitor-client relationship – representation by silence – where solicitor not under duty to advise on investment contract – whether solicitor's silence on investment amounted to representation about investment - GUARANTEE AND INDEMNITY – contract of guarantee – guarantee for investment – where same solicitor acted for guarantor and borrower – where solicitor advised both guarantor and borrower in same room