Gattellaro v Spencer

Court of Appeal

New South Wales

Case Title:

Gattellaro v Spencer and ors

Medium Neutral Citation:

[2011] NSWCA 415

Hearing Date(s):

17 November 2011

Decision Date:

20 December 2011

Jurisdiction:

Before:

Beazley JA at [1]; 
Young JA at [111]; 
Sackville AJA at [112]

Decision:

The appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

NEGLIGENCE - duty of care - solicitors - whether breach of professional duty - failure to convey offer of settlement to appellant - causation - whether trial judge's conclusion on causation was correct

LEGAL PROFESSION - solicitors - advocate's immunity - question not arising where breach of duty and causation not established

Legislation Cited:

Contracts Review Act 1980
Real Property Act 1900

Cases Cited:

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395
Gattellaro & Anor v Westpac Banking Corporation [2001] NSWCA 76
Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 204 ALR 258
Marston v Charles H Griffith & Co Pty Ltd (1982) 3 NSWLR 294
Westpac Bankings Corporation v Gattellaro [2000] NSWSC 775

Texts Cited:

Category:

Principal judgment

Parties:

Yolanda Gattellaro (Appellant
Keith Spencer (First Respondent)
William Whitby (Second Respondent)
David J Adams (Third Respondent)

Representation

- Counsel:

D W Elliott;  G J Smith (Appellant)
P Morris (Respondents)

- Solicitors:

Julie A Orsini (Appellant)
Yeldham Price Obrien Lusk (Respondents)

File number(s):

2005/269546

Decision Under Appeal

- Court / Tribunal:

- Before:

Hislop J

- Date of Decision:

06 October 2010

- Citation:

Gattellaro v Spencer [2010] NSWSC 1122

- Court File Number(s)

2005/269546

Publication Restriction:

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant and her husband executed two mortgages, the first in 1977 and the second in 1986, in favour of Westpac, over their family home. Both mortgages were all monies first and third party mortgages. The 1986 mortgage was entered into for the purposes of securing the consolidated indebtedness of the appellant and her husband and their construction company, Falgat Constructions Pty Limited (Falgat). Notwithstanding the entry into the 1986 mortgage, the 1977 mortgage was never discharged. In 1985, the appellant also executed a guarantee of the debts of Falgat, in favour of Westpac.
In 1989 Westpac sought repayment of the outstanding indebtedness under the loan facility provided in 1986. It subsequently commenced proceedings seeking a writ of possession of the family home and judgment for a money sum. There then followed protracted litigation, which ended unsuccessfully for…