Dominic v Riz [2009] NSWCA 216

New South Wales Court of Appeal

CITATION: Dominic v Riz [2009] NSWCA 216

HEARING DATE(S): 4 May 2009

JUDGMENT DATE: 29 July 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 118; McColl JA at 119

1. Appeal allowed. DECISION: 2. Set aside the orders made on 13 and 29 November 2007 against the appellants as third, fourth and fifth defendants and in lieu thereof order judgment for the third, fourth and fifth defendants with costs. 3. Respondents pay the appellants' costs of the appeal. 4. Direct any application by the respondents for a certificate under the Suitors Fund Act 1951 be made within 10 days by notice of motion accompanied by an affidavit. The Court will deal with the application, if made, on the papers.

CATCHWORDS: TORTS – negligence – duty of care – solicitor retained to advise on mortgage and loan documents – loaned moneys to be applied to investment – solicitor not retained to advise on the underlying investment transaction – solicitor knew clients were aware of high risk of investment – solicitor advised clients to seek independent legal and financial advice – whether advice of solicitor that the clients should seek independent advice was adequate – whether solicitor could reasonably conclude that clients understood the advice – no breach of duty - TORTS – negligence – causation – no causation on the facts - LEGAL PRACTITIONERS – solicitors – conflict of duty and duty – no conflict in context where not advising on the underlying investment transaction

LEGISLATION CITED: Contracts Review Act 1980 Civil Liability Act 2002 (NSW)

CATEGORY: Principal judgment

Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 Brickenden v London Loan & Savings Co of Canada [1934] 3 DLR 465 Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144 Cumuck v Nitschke [2001] NSWCA 176 David v David [2009] NSWCA 8 Fox v Percy [2003] HCA 22; 214 CLR 118 Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 CASES CITED: Imbrahim v Pham [2007] NSWCA 215 Kowalczuk v Accom Finance [2008] NSWCA 343 O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262 Permanent Trustee Co of New South Wales Ltd v Bridgewater [1936] 3 All ER 501 Pilmer v Duke Group Limited (in Liquidation) [2001] HCA 31; 207 CLR 165 Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153; NSW ConvR 56-198 Royal Bank of Scotland v Etridge (No 2) [2001] 4 All ER 449 Stivactas v Michaletos (No 2) [1994] ANZ Conv R 252 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 White v Illawarra Mutual Building Society Limited [2002] NSWCA 164