Mbakwe v Sarkis

The appeal concerned a claim in negligence brought by the plaintiff, Mr Sarkis, against the defendant, Mr Mbakwe, who had provided financial advice to the plaintiff. The central dispute revolved around whether Mr Mbakwe owed a duty of care to Mr Sarkis in relation to the financial advice he provided. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether a duty of care could arise in circumstances where financial advice was volunteered by the defendant to the plaintiff, rather than being sought by the plaintiff. This required the court to consider the principles governing the establishment of a duty of care in negligence, particularly in the context of unsolicited advice and the relationship between the parties.

The Court of Appeal affirmed the existence of a duty of care. Applying established principles of negligence, the court found that Mr Mbakwe had voluntarily assumed responsibility for the advice he gave to Mr Sarkis. The court reasoned that when a person voluntarily assumes responsibility for the accuracy of advice given to another, and that other person relies on that advice to their detriment, a duty of care can arise, irrespective of whether the advice was formally sought. The court considered the circumstances in which such a duty is imposed, focusing on the reliance placed by the plaintiff on the defendant's expertise and the foreseeability of harm.

The appeal was dismissed, and Mr Mbakwe was ordered to pay the costs of the appeal.