Provident Capital Ltd v Papa [2013] NSWCA 36

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Provident Capital Ltd v Papa [2013] NSWCA 36 Hearing dates: 29 and 30 November 2012 Decision date: 28 February 2013 Before: Allsop P at [1] Macfarlan JA at [9] Sackville AJA at [119] Decision: (1) Appeal of Provident Capital allowed. (2) Set aside orders 1 and 4 and declarations 2 and 3 made at first instance on 28 October 2011. (3) Judgment for Provident Capital for possession of the land comprised in Certificate of Title Folio Identifier 1/444075 being land at Leichhardt in the State of New South Wales. (4) Dismiss Mrs Papa's cross-claim against Provident Capital. (5) Order Mrs Papa to pay Provident Capital's costs of its proceedings against her at first instance and of Mrs Papa's appeal. (6) Appeal of Mrs Papa against Mr Caramanlis allowed. (7) Set aside orders 5 and 6 made at first instance on 28 October 2011. (8) Judgment in favour of Mrs Papa against Mr Caramanlis for damages in an amount to be determined. (9) If Mrs Papa and Mr Caramanlis are able to agree as to the amount of the damages to be awarded against Mr Caramanlis, direct those parties to file a form of consent order with the Court within seven days of the date of this judgment. (10) If those parties are unable to so agree, direct that within 14 days of the date of this judgment Mrs Papa lodge written submissions on that topic, that Mr Caramanlis lodge written submissions in response within a further seven days and that Mrs Papa lodge any reply within a further seven days. (11) Order Mr Caramanlis to pay Mrs Papa's costs at first instance of Provident Capital's claim against her and her claim against Mr Caramanlis. (12) Mrs Papa and Mr Caramanlis are to have certificates under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - professional persons - solicitors - independent legal advice regarding financier's loan and security documents - whether penumbral duty of care beyond retainer - whether failure to advise of reality of financial risks was a breach of duty - whether failure to advise client to seek independent financial advice was a breach of duty - causation - whether breach of duty caused loss - whether client would have sought independent financial advice if advised to do so