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David v David

David v David

Case [2007] NSWSC 855 9 August 2007

Contract Formation

Breach of Contract

Unconscionable Conduct

Civil Litigation & Procedure

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CITATION: Eddy Simon David; Grace David v Fred David & Ors [2007] NSWSC 855
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2, 3, 4, 5, 10, 11, 12, 13 May 2007
21 June 2007

JUDGMENT DATE :
9 August 2007

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 172

LEGISLATION CITED: Corporations Law
Trade Practices Act 1974
Fair Trading Act 1980

CASES CITED: Beach Petroleum NL v Kennedy and others (1999) 48 NSWLR 1
Karl Suleman Enterprises Pty Ltd v Babanour 49 ACSR 612
Citicorp Australia Ltd v O’Brien (1996) 40 NSWLR 398
Ibrahim v Pham, [2005] NSWSC 246
Hill v Van Erp (1997) CLR 159,
Bryan v Maloney (1995) 182 CLR 609
Hawkins v Clayton (1987-1988) 164 CLR 539
Perre v Apard Pty Ltd (1999) 198 CLR 180
Graham v Hall (2006) NSWCA 208.

PARTIES: Eddy Simon David - First Plaintiff
Grace David - Second Plaintiff
Fred David - First Defendant
Suzie David - Second Defendant
Paul Manuelpilla Dominic - Third Defendant
Linda Joan Romano - Fourth Defendant
Andy Isho - Fifth Defendant
Direct Mortgage Solutions Pty Limited - Sixth Defendant
Macquarie Bank Limited - Seventh Defendant

FILE NUMBER(S): SC 11832 of 2003

COUNSEL: Mr D Baran - Plaintiffs
Mr R Darke SC with Mr M Dicker - First to Fourth Defendants
Mr G Curtin - Fifth Defendant

SOLICITORS: Barclay Benson Lawyers - Plaintiffs
Middletons - First to Fourth Defendants
Henry Davis York - Fifth Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

Patten AJ

9 August 2007

No: 11832 of 2003

Eddy Simon David – First Plaintiff
Grace David – Second Plaintiff

v

Fred David – First Defendant
Suzie David – Second Defendant
Paul Manuelpilla Dominic – Third Defendant
Linda Joan Romano – Fourth Defendant
Andy Isho – Fifth Defendant
Direct Mortgage Solutions Pty Limited – Sixth Defendant
Macquarie Bank Limited – Seventh Defendant

JUDGMENT:

INTRODUCTION:

1 The Plaintiffs, husband and wife, sue a number of defendants in respect of investments made during 2001 with a company Karl Suleman Enterprizes Pty Ltd (in liquidation), (Suleman Enterprizes). It appears that most of the sums invested will be irrecoverable following the collapse and liquidation towards the end of 2001 of Suleman Enterprizes, the principal of which was a Mr Karl Suleman. He is presently serving sentences of imprisonment for a variety of offences, including breaches of his obligations as a company director.

2 I was informed at the commencement of the hearing that the Plaintiffs have settled with the Sixth and Seventh Defendants and the proceedings before me concerned only the First to Fifth Defendants, all solicitors of this court. Of those defendants, the first four practised in partnership as Dominic David Stamfords (DDS) and the fifth practised under the firm name Isho and Associates.

3 As against the First to Fourth Defendants, the Plaintiffs alleged that they retained DDS to advise and act for them in relation to…

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 David v David

Details

AGLC: David v David [2007] NSWSC 855
Case: [2007] NSWSC 855
Decision Date: 9 August 2007

CaseChat Overview and Summary

In David v David, the plaintiffs, a married couple, brought an action against several defendants, including solicitors, for losses incurred from investments in a company, Karl Suleman Enterprises Pty Ltd (Suleman Enterprizes), which later went into liquidation. The plaintiffs alleged that the defendants were negligent and had breached fiduciary duties, engaged in deceptive and misleading conduct, and contravened various statutory provisions. The court held that the plaintiffs' claims against all defendants failed for various reasons. The plaintiffs' claims against the first to fourth defendants, who were solicitors, were dismissed because the court found that there was no duty of care owed by the solicitors to the plaintiffs, no breach of fiduciary duty, and no deceptive or misleading conduct. The plaintiffs' claims against the fifth defendant, another solicitor, also failed because there was no actionable breach of duty of care or statutory obligation. The court found that the plaintiffs were so enthused by the investment opportunity that they would have invested regardless of any advice received. The court dismissed the proceedings against all defendants and ordered the plaintiffs to pay the defendants' costs.

Orders