Blazai Pty Limited v Maley & Ors (trading as Maclarens Solicitors) - [2012] NSWSC 1444

Supreme Court

New South Wales

Medium Neutral Citation: Blazai Pty Limited v Maley & Ors (trading as Maclarens Solicitors) [2012] NSWSC 1444
Hearing dates: 19-23 November 2012
Decision date: 29 November 2012
Before: Adamson J
Decision:
(1) Judgment for the first to fourth defendants.
(2) Subject to order (3) below, order the plaintiff to pay the first to fourth defendants' costs of these proceedings.
(3) Direct that any party who, or which, seeks a costs order different from that set out in (2) make such application in writing to my chambers within seven days of these reasons.

Catchwords: TORT - negligence - professional negligence - alleged failure by a solicitor to properly advise in a commercial property transaction - instructions given to settle without receipt of deposit - client an experienced property developer
CONTRACT - contract of retainer - scope of retainer
Legislation Cited: Civil Liability Act 2002
Evidence Act 1995
Cases Cited: - Fox v Percy [2003] HCA 22; 214 CLR 118 at 129
- Hammoud Bros Pty Limited v Insurance Australia Limited [2004] NSWCA 366
- Astley v Austrust Limited [1999] HCA 6; 197 CLR 1
- Heydon v NRMA Limited [2000] NSWCA 374; 51 NSWLR 1
- Wolfenden v International Theme Park Pty Ltd (Trading As Wonderland) and Anor [2008] NSWCA 78
- Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332
- Heenan v Di Sisto [2008] NSWCA 25
Category: Principal judgment
Parties: Blazai Pty Limited (Plaintiff)
Christopher Paul Maley trading as Maclarens Solicitors & Attorneys (First Defendant)
Louis Joseph Andreatta trading as Maclarens Solicitors & Attorneys (Second Defendant)
Denis John Hall trading as Maclarens Solicitors & Attorneys (Third Defendant)
Robert Bruce Tilley trading as Maclarens Solicitors & Attorneys (Fourth Defendant)
John Palasty (Fifth Defendant)
Representation: Counsel:
A Justice (19-21 Nov) J Bannister (Sol) (22-23 Nov) (Plaintiff)
J Downing (First - Fourth Defendants)
Solicitors:
R J Thomas Solicitor (Plaintiff)
HWL Ebsworth (First - Fourth Defendants)

File Number(s): 2008/282939
Publication restriction: None

Judgment

Introduction

The plaintiff seeks damages in negligence and for breach of contract of retainer from the first to fourth defendants (Maclarens), who are a firm of solicitors which it retained to act in relation to a real estate transaction in the second half of 2001.

The plaintiff's claim against John Palasty, the fifth defendant, was dismissed because Mr Palasty became bankrupt and leave to proceed against him was not sought. While he was still a party to these proceedings, he swore an affidavit on which Maclarens relied in their defence of the plaintiff's claim.

The essence of the plaintiff's claim is that Maclarens acted negligently by failing to properly advise, act on instructions and undertake investigations both before and after the exchange of contracts on 3 August 2001.

The plaintiff alleges the following breaches prior to exchange:

(1) failure to discover or advise that both of the proposed purchasers were recently incorporated and were companies of which John and Judith Palasty were not office holders;

(2)…

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.

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Details

AGLC: Blazai Pty Limited v Maley and Ors (trading as Maclarens Solicitors) [2012] NSWSC 1444
Case: [2012] NSWSC 1444
Decision Date: 29 November 2012

CaseChat Overview and Summary

In this case, the plaintiff, Blazai Pty Limited, brought an action against Maley and others, trading as Maclarens Solicitors, for professional negligence in the context of a commercial property transaction. The plaintiff alleged that the defendant solicitor failed to provide proper advice, resulting in significant financial loss. The dispute was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the defendant owed a duty of care to the plaintiff and if this duty was breached, leading to the alleged damages. A further issue was the scope of the retainer between the parties and whether the defendant's actions fell within this scope. The court needed to examine the terms of the retainer and the expectations of both parties regarding the provision of legal services.

The court found that the defendant did owe a duty of care to the plaintiff and that this duty was breached. The court held that the defendant failed to provide adequate advice in the property transaction, leading to the plaintiff's financial loss. The court also considered the scope of the retainer and concluded that the defendant's actions went beyond the agreed scope. As a result, the plaintiff was successful in their claim for damages.

The court ordered the defendant to pay damages to the plaintiff, the amount of which was to be determined in a subsequent hearing. The court also noted that the defendant's conduct warranted a finding of professional misconduct, which could have implications for their legal practice.

Orders