Clarke v Wakeling & Anor [2009] NSWSC 1230

New South Wales Supreme Court

CITATION : Clarke v Wakeling & Anor [2009] NSWSC 1230

HEARING DATE(S) : 07/09/2009, 08/09/2009, 09/09/2009

JUDGMENT DATE : 20 November 2009

JUDGMENT OF : Hoeben J

DECISION : Judgment entered in favour of the defendants against the plaintiff. Plaintiff to pay the defendants' costs of these proceedings.

CATCHWORDS : TORTS - negligence - claim against solicitor - solicitor advising on mortgage and loan documents - whether solicitor provided advice as to moneys to be applied to investment - contested factual findings - credibility of witnesses - LEGAL PRACTITIONERS - solicitors - duty to client - whether duty extends to making inquiries and providing advice as to investments - CAUSATION - no causation on the facts.

CATEGORY : Principal judgment

Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 Dominic v Riz [2009] NSWCA 216 CASES CITED : Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Kowalczuk v Accom Finance Pty Limited [2008] NSWCA 343 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642

Souad Clarke - Plaintiff PARTIES : Donald Wakeling - First Defendant LawCover Insurance Pty Limited - Second Defendant

FILE NUMBER(S) : SC 20385/2007

COUNSEL : Mr A P Cheshire - Plaintiff Mr W McManus - First and Second Defendants

SOLICITORS : Oliveri Lawyers - Plaintiff Colin Biggers & Paisley - First and Second Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Friday 20 November 2009

20385/2007 - Souad CLARKE v Donald WAKELING & Anor

JUDGMENT 1 HIS HONOUR: Nature of Proceedings The plaintiff has brought proceedings against the first defendant (Mr Wakeling) alleging that he acted as her solicitor in certain loan transactions and that he carried out that function negligently. There were three loan transactions. The plaintiff claims the loss of the moneys loaned and for consequential loss such as legal fees incurred when seeking to recover the loan moneys from the borrower. No claim is made in contract. The claim is based on negligence. 2 Although two defendants are named, the Court was advised on the first day of the hearing that the second defendant had agreed to indemnify Mr Wakeling. The same counsel represented both defendants. The matter was conducted as if Mr Wakeling were the only defendant. 3 The issue between the parties is essentially a factual one. If the plaintiff's version of events is accepted, the liability of Mr Wakeling is clear. If only part of the plaintiff's evidence is accepted, or if it is rejected substantially, a question may still arise as to the extent of the duty owed by Mr Wakeling to her.