Clarke v Wakeling - [2009] NSWSC 1230

CITATION: Clarke v Wakeling & Anor [2009] NSWSC 1230

HEARING DATE(S): 07/09/2009, 08/09/2009, 09/09/2009

JUDGMENT DATE :
20 November 2009

JUDGMENT OF: Hoeben J

DECISION: Judgment entered in favour of the defendants against the plaintiff.
Plaintiff to pay the defendants’ costs of these proceedings.

CATCHWORDS: TORTS - negligence - claim against solicitor - solicitor advising on mortgage and loan documents - whether solicitor provided advice as to moneys to be applied to investment - contested factual findings - credibility of witnesses - LEGAL PRACTITIONERS - solicitors - duty to client - whether duty extends to making inquiries and providing advice as to investments - CAUSATION - no causation on the facts.

CATEGORY: Principal judgment

CASES CITED: Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Dominic v Riz [2009] NSWCA 216
Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1
Kowalczuk v Accom Finance Pty Limited [2008] NSWCA 343
Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642

PARTIES: Souad Clarke - Plaintiff
Donald Wakeling - First Defendant
LawCover Insurance Pty Limited - Second Defendant

FILE NUMBER(S): SC 20385/2007

COUNSEL: Mr A P Cheshire - Plaintiff
Mr W McManus - First and Second Defendants

SOLICITORS: Oliveri Lawyers - Plaintiff
Colin Biggers & Paisley - First and Second Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 20 November 2009

20385/2007 - Souad CLARKE v Donald WAKELING & Anor
JUDGMENT

1 HIS HONOUR:

Nature of Proceedings

2 Although two defendants are named, the Court was advised on the first day of the hearing that the second defendant had agreed to indemnify Mr Wakeling. The same counsel represented both defendants. The matter was conducted as if Mr Wakeling were the only defendant.

3 The issue between the parties is essentially a factual one. If the plaintiff’s version of events is accepted, the liability of Mr Wakeling is clear. If only part of the plaintiff’s evidence is accepted, or if it is rejected substantially, a question may still arise as to the extent of the duty owed by Mr Wakeling to her.

Factual Background

4 Except as otherwise indicated, I find the facts to be as follows.

5 At the time of these events, Mr Wakeling held a practising certificate as a solicitor and was the principal of the firm Wakeling and Associates.

6 The plaintiff at the time of trial was aged 50. She had tertiary qualifications in interior and fashion design obtained in France in the 1970’s. She arrived in Australia in 1985 with only a…

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 Clarke v Wakeling

Details

AGLC: Clarke v Wakeling [2009] NSWSC 1230
Case: [2009] NSWSC 1230
Decision Date: 20 November 2009

CaseChat Overview and Summary

Clarke sued Wakeling, a solicitor, alleging negligence in the provision of advice regarding mortgage and loan documents. The dispute centred on whether the solicitor had provided advice on the application of moneys to an investment, which the plaintiff claimed was negligently omitted. The matter was heard in the Supreme Court of South Australia.

The court had to determine whether a solicitor owed a duty to a client to make inquiries and provide advice about investments when preparing mortgage and loan documents. The plaintiff argued that the defendant's failure to provide such advice constituted a breach of duty and resulted in financial loss. The court had to consider the factual findings, particularly the credibility of the witnesses, to resolve the dispute.

The court found that the plaintiff had not established that the defendant owed a duty to advise on investments. Furthermore, even if such a duty existed, the plaintiff could not prove that the defendant's alleged failure to advise caused the financial loss. The court concluded that the plaintiff had not demonstrated causation between the defendant's conduct and the alleged loss. Consequently, the claim was dismissed.

No further orders were made by the court.

Orders