VUKMIRICA v BETYOUNAN [2008] NSWCA 16

New South Wales Court of Appeal

CITATION: VUKMIRICA v BETYOUNAN [2008] NSWCA 16

HEARING DATE(S): 12 February 2008

JUDGMENT DATE: 14 May 2008

JUDGMENT OF: Giles JA at 1; McColl JA at 92; Bell JA at 93

DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment in favour of the plaintiffs; (3) Remit the matter to the District Court for a new trial; (4) Costs of the trial to be in the discretion of the judge hearing the new trial; (5) Respondents pay appellant's costs of the appeal and have a certificate under the Suitors Fund Act.

CATCHWORDS: Negligence - solicitor - husband and wife borrowed money - acted on loan and mortgage - part of money "invested" and lost - whether investment without clients' authority - with authority of husband - whether with authority of wife - whether authority of wife to be implied - whether ostensible authority to be found - factual findings flawed - failure to make findings as to wife's involvement with husband's intentions - or with subsequent false account of transaction - findings in part based on observations of husband and wife in court not made known to solicitor - new trial ordered.

LEGISLATION CITED: Civil Liability Act 2002 Civil Procedure Act 2005

CATEGORY: Principal judgment

Angaston and District Hospital v Thamm (1987) 47 SASR 177; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 113 CLR 72; Dare v Pulham (1982) 148 CLR 658; Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50; CASES CITED: Farrer v Messrs Copley Singletons (Formerly Known as Messrs Gowan and Singleton) [1997] EWCA Civ 2127; Government Insurance Office Of New South Wales v Bailey (1992) 27 NSWLR 304; Kappis v State Transit Authority (1995) 11 NSWCCR 386; Kassem v Crossley [2000] NSWCA 276; Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35.