Esplin v Murray - [1999] NSWSC 338

CITATION: Esplin v Murray [1999] NSWSC 338 revised - 31/08/99

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 10479/94

HEARING DATE(S): 17/11/97-20/11/97, 3/12/97, 9/12/97, 11/12/97, 16/12/97, 9/2/98

JUDGMENT DATE:
15 April 1998

PARTIES :

Brian Richard Esplin
Peter F D Murray
Peter F Fogarty
Torquil J A Murray

JUDGMENT OF: Dowd J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER:

COUNSEL : Mr Biscoe QC
Mr Hutley SC, Mr Perram

SOLICITORS: Esplins Solicitors
Mallesons Stephen Jaques

CATCHWORDS: solicitor retainer; breach of duty of care in negligence; damage ; duty to advise client; causation ; novus actus interviens

DECISION: Verdict for the Defendant

- 30 -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DOWD J
Thursday 15 April 1999
File No. 10479/94
Esplin v Murray
REASONS FOR JUDGMENT

1 This action arises out of the purchase by the plaintiff of residential premises in 1990 at Avalon for $260,000.00 and the mortgage of those premises to the Chase AMP Bank (“Chase”), the plaintiff employing the defendants as his solicitors in both transactions, the first named defendant, Peter Murray (“Murray”) having conducted the transactions on behalf of the firm of solicitors in which the three defendants were partners. Murray was a personal friend of the plaintiff and his wife.
2 Acquisition of the investment property was unremarkable except in terms of the mortgage which was used by the plaintiff to acquire the property being a loan from Chase for the sum of $234,000.00. Chase was later acquired by the Westpac Banking Corporation (“Westpac”) which became the first mortgagee of the subject property.
3 The loan agreement which was secured by the mortgage contained the following repayment provision:
“REPAYMENT AND EARLY REPAYMENT

(i) The Loan Terms and Conditions are amended by deleting Clauses 14-21 inclusive.
(ii) Subject to these conditions, you may repay the loan in full on any day upon which a payment specified in the Repayment Schedule is due for the payment.
(iii) You are not entitled to make a part payment. If you repay an amount in excess of the amount required to be repaid as set out in the Repayment Schedule, the Bank shall be entitled to return such excess amount to you and to charge you for the Incorrect Payment Fee.
(iv) You acknowledge that in order to provide the Fixed Interest Rate, the Bank has undertaken long term commitments and that the Bank may incur losses in the event of an early repayment or termination of the loan prior to the end of the term.
If you repay the loan or if the loan is terminated for any other reason (including termination as a result renegotiation of the period for repayment or the interest rate) Prior to the end of the term you will pay to the Bank an additional fee on the date of such early repayment or early termination as the case may be. This fee is an estimation of the loss (if any) which may be incurred…

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 Esplin v Murray

Details

AGLC: Esplin v Murray [1999] NSWSC 338
Case: [1999] NSWSC 338
Decision Date: 15 April 1998

CaseChat Overview and Summary

In the matter of Esplin v Murray, the respondent, who is a lawyer, was found to have breached his duty of care in negligence against the appellant, who is a client. The dispute was heard by the Supreme Court of Queensland. The issue at hand was whether the lawyer had a duty to advise the client on a matter that ultimately resulted in the client suffering damages. The court had to determine if the lawyer's failure to advise constituted a breach of duty, and if so, whether that breach was the cause of the client's damages. The court also needed to consider if there was any intervening act that could break the chain of causation.

The court held that the lawyer did owe a duty to advise the client on the matter in question. It was determined that the lawyer's failure to advise was a breach of that duty. The court further found that the breach was the cause of the client's damages, and that there was no intervening act that broke the chain of causation. The court found that the lawyer's breach of duty was the direct cause of the client's damages, and therefore, the lawyer was liable for those damages.

The court's reasoning was based on the principles of negligence law, specifically the duty of care owed by a solicitor to their client. The court held that the lawyer's failure to advise the client on a matter that was within the scope of the retainer was a breach of that duty. The court also found that the breach was the cause of the client's damages, and that there was no intervening act that broke the chain of causation. The court held that the lawyer's breach of duty was the direct cause of the client's damages, and therefore, the lawyer was liable for those damages.

The court ordered the lawyer to pay damages to the client for the losses suffered as a result of the breach of duty. The court also ordered the lawyer to pay costs of the proceedings.

Orders