Lee v Elgammal [2016] NSWCA 26

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lee v Elgammal [2016] NSWCA 26 Hearing dates: 2 December 2015 Date of orders: 03 March 2016 Decision date: 03 March 2016 Before: Gleeson JA Tobias AJA Emmett AJA Decision: (1) Appeal be allowed.

(2) Orders of the District Court on 14 May 2015 be set aside, and, in lieu thereof, there be judgment for the appellant in the District Court.

(3) The plaintiff pay the defendant's costs in the District Court.

(4) The respondent pay the appellant's costs of the appeal.

(5) The respondent have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. Catchwords: PROFESSIONAL NEGLIGENCE – legal - guarantee for loan – extent of liability – security instruments – causation – whether respondent would have refused to sign guarantee had he understood it was for the full value of the loan – whether bank would have accepted lesser guarantee. EVIDENCE – Civil Liability Act, s 5D(3) – whether affidavit evidence of respondent's understanding was admissible – affidavit evidence admitted during trial but ruled inadmissible in judgment – whether respondent's oral evidence admissible where evidence resulted from cross-examination that would not have occurred had the affidavit evidence been ruled inadmissible at trial. Legislation Cited: Civil Liability Act 2002 (NSW) Suitors Fund Act 1951 (NSW) Cases Cited: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Adamson v Ede [2009] NSWCA 403 at [30]–[31] Category: Principal judgment Parties: Siu Kay Michael Lee (Appellant) Elarby Elgammal (Respondent) Representation: Counsel: A Zahra (Appellant) LT Livingston (Respondent)