Legal Research
Cases
Bakovski v Lenehan

Bakovski v Lenehan

Case [2014] NSWSC 671 27 May 2014

Professional Negligence

Civil Litigation & Procedure

Professional Negligence

Type to search within this case.

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bakovski v Lenehan [2014] NSWSC 671
Hearing dates: 15-18 April 2013; 1-3 May 2013
Decision date: 27 May 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) Subject to orders and directions set out below, I propose entering judgment in favour of the plaintiffs against the second defendant for breach of duty under the retainer with the plaintiffs, and the first defendant, as vicariously liable for the acts and omissions of the second defendant in respect of the following:
(a) Loss and damage in the amount of $243,278.41.
(b) Pre-judgment interest on that amount, calculated in accordance with s 100 of the Civil Procedure Act 2005, Part 6 r 6.12 of the Uniform Civil Procedure Rules 2005, and Practice Note SC Gen 16, calculated from 11 December 2004 to 27 May 2014 and thereafter to date of entry of judgment. I note interest on the above basis from 11 December 2004 to 27 May 2014 is calculated at $201,234.57.
(2) Leave granted to the parties to make an application and submissions in relation to:
(a) The calculation of the amounts referred to in (1)(a) and/or (1)(b) above.
(b) Costs and any ancillary or consequential orders.
(3) The parties are to bring in short minutes of order to give effect to this judgment.
(4) The proceedings will be re-listed in respect of orders (2) and (3) at 9.30am on Monday, 2 June 2014.

Catchwords: NEGLIGENCE - professional negligence - breach of retainer - plaintiffs were borrowers under a loan/mortgage transaction - plaintiffs mistakenly believed they were guarantors to the mortgage and not the borrowers under the loan - plaintiffs would not have entered into the transaction had they known they were the borrowers - plaintiffs had limited understanding of English - failure by defendant solicitor to advise plaintiffs as to the legal effect and risks of the mortgage transaction - solicitors required to give such advice as called for in the circumstances of each case - harsh and oppressive terms of the loan/mortgage required the defendant solicitor to give specific and strong advice to the plaintiffs not to accept the loan offer and warn of the risks in doing so - solicitor breached duty to exercise reasonable care, skill - consequential loss incurred by plaintiffs refinancing mortgages - defence of contributory negligence not established - apportionable claim in accordance with Part 4 of the Civil Liability Act 2002 (NSW) - apportionment of liability between concurrent wrongdoers
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Fair Trading Act 1987
Uniform Civil Procedure Rules 2005
Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6
Briginshaw v Briginshaw (1938) 60 CLR 336
Chandra v Perpetual Trustees Victoria Limited [2007] NSWSC 694
Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216
Fox v Percy (2003) 214 CLR 118
George v Webb [2011] NSWSC 1608
Ghunaim v Bart [2004] NSWCA 28
Ginelle Finance Pty Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakovski v Lenehan

Details

AGLC: Bakovski v Lenehan [2014] NSWSC 671
Case: [2014] NSWSC 671
Decision Date: 27 May 2014

CaseChat Overview and Summary

In Bakovski v Lenehan, the plaintiffs, who were borrowers under a mortgage, sued their solicitor for professional negligence. The plaintiffs alleged that they were misled by the solicitor into believing they were guarantors rather than borrowers in a loan transaction. They claimed that their limited understanding of English contributed to this misunderstanding. The plaintiffs argued that had they been correctly advised, they would not have entered into the transaction. The defendant solicitor was accused of breaching his duty by failing to provide the necessary advice regarding the legal implications and risks associated with the mortgage.

The court was tasked with determining whether the solicitor breached his duty of care by not advising the plaintiffs adequately. The central issue was whether the harsh and oppressive terms of the mortgage required the solicitor to provide explicit and robust advice against accepting the loan. The plaintiffs contended that the solicitor's failure to communicate effectively resulted in significant financial loss when they had to refinance their mortgages. The court also considered whether the plaintiffs' contributory negligence negated the solicitor's liability and whether the claim was apportionable under the Civil Liability Act 2002 (NSW).

The court found that the solicitor did indeed breach his duty by not advising the plaintiffs adequately, particularly given their limited understanding of English and the harsh terms of the mortgage. The court ruled that the defence of contributory negligence was not established, and therefore the plaintiffs' claim was not negated by their own actions. The court further determined that the claim was apportionable under the Civil Liability Act 2002 (NSW), leading to a division of liability between the solicitor and the plaintiffs. The final orders were made to reflect this apportionment.

Orders