Perpetual Trustee Company Limited v Stojcevski [2014] NSWSC 1718

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Limited v Stojcevski [2014] NSWSC 1718 Hearing dates: 24, 25 and 26 November 2014 Decision date: 03 December 2014 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the cross-claim. 2. Order that, unless any party makes an application in writing to my Associate within seven days, the cross-claimant pay the cross-defendant's costs of the proceedings. Catchwords: TORTS - professional negligence - cross-claim against solicitor - cross-claimant husband and wife received legal advice from cross-defendant in relation to signing a loan agreement and mortgage - solicitor was not obliged to advise husband to obtain independent advice - mere fact that the solicitor had been told two years previously that parties were separated did not give rise to a duty to interrogate clients about the state of their marriage - parties living separately for benefit of son - joint loan secured over joint property for apparently mutual benefit

LIMITATION OF ACTIONS -causes of action statute-barred

DAMAGES - no proper evidence to make findings on the calculation of damages - loan increased by unrelated refinance - quantum of benefit retained by cross-claimant from loan unclear - costs of retaining a handwriting claimed by cross-claimant were incurred as a result of the cross-claimant's false instructions to solicitor Legislation Cited: Consumer Credit (New South Wales) Code 1995 (NSW), s 80 Civil Liability Act 2002 (NSW), s 35 Civil Procedure Act 2005 (NSW), s 56 Real Property Act 1900 (NSW), s 57 Cases Cited: Forster v Outred & Co. [1982] 1 WLR 86 Hawkins v Clayton (1988) 164 CLR 539 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Category: Principal judgment Parties: Perpetual Trustee Company Limited (Plaintiff) Branko Stojcevski (First Defendant/ Cross Claimant) Lesley Alexandra Stojcevski (Second Defendant) Frank Mathey (Cross Defendant) Representation: Counsel: J Wilson (Cross Claimant) AR Zahra (Cross Defendant) Solicitors: RMB Lawyers (Cross Claimant) Sparke Helmore (Cross Defendant) File Number(s): 2013/60807 Publication restriction: Nil