Bakovski v Lenehan

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.