Notaras v Sly & Weigall

Case [2005] NSWCA 275
CITATION:

NOTARAS v SLY & WEIGALL NOTARAS v NEWMAN PSALTIS [2005] NSWCA 275
HEARING DATE(S):

25, 26 and 27 July 2005
 
JUDGMENT DATE: 


22 August 2005

JUDGMENT OF:

Mason P at 1; Hodgson JA at 169; Mathews AJA at 170
DECISION:

Each appeal dismissed with costs
CATCHWORDS:

PROFESSIONAL NEGLIGENCE - mortgage - notice of default - exercise of power of sale - ss57, 58, 58A Real Property Act 1900 - Notice under s57(2)(b) - arguable invalidity of notice - arguable prematurity of notice - date of service - failure to seek an injunction - advice that an injunction should not be sought - delay - solicitor's belief that proceedings would be hopeless and an abuse of process - application of s58A - loss of a financial advantage - loss of bargaining opportunity - where client did not lose anything of value - where solicitor was not engaged in relation to financial dealings. (ND)
LEGISLATION CITED:

Contracts Review Act 1980
Corporations Law, s460
Real Property Act 1900, ss57, 58A
CASES CITED:

Abalcheck Pty Ltd v Pullen, Hodgson J, 26 June 1990 unreported
Arthur J S Hall & Co v Simons [2002] 1 AC 615
Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491
Commissioner of State Revenue of Victoria v The Roy Morgan Research Centre Pty Ltd (1997) 24 ACSR 73
Dawson v Westpac Banking Corporation (1991) 104 ALR 295
Farrow Mortgage Services Pty Ltd v Ragata Developments Pty Ltd (1993) 32 NSWLR 333
Giannarelli v Wraith (1988) 165 CLR 543
Harvey v McWatters (1948) 49 SR(NSW) 173
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363
McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835
Notaras & Anor v Hugh & Ors [2003] NSWSC 440
Notaras & Anor v Hugh & Ors [2003] NSWSC 919
Sellars v Adelaide Petroleum NL (1992) 179 CLR 332
Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573
Williams and Glyn's Bank Ltd v Barnes [1981] Com LR 206
Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) 6 BPR 13,527
D A Ipp, "Lawyers' Duties to the Court" (1998) 114 LQR 63
PARTIES:

Irene NOTARAS & Anor v SLY & WEIGALL t/as SLY & WEIGALL SOLICITORS
Irene NOTARAS & Ors v Graham Solomon NEWMAN t/as NEWMAN PSALTIS & CO & Anor
FILE NUMBER(S):

CA 40516/03; 50517/04
COUNSEL:

Appellant: F M Douglas QC/ R Evans/ K Poulos
Respondent: (Sly & Weigall): J Sackar QC/ S Hollo/
M J O'Meara
Respondent: (Newman Psaltis): D Davies SC/
J Downing
SOLICITORS:

Appellant: McKells
Respondent: (Sly & Weigall) Minter Ellison
Respondent: (Newman Psaltis) Ebsworth & Ebsworth

LOWER COURT JURISDICTION:

Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):

SC 20217/98
SC 20212/98

LOWER COURT JUDICIAL OFFICER:

Sperling J



                            CA 40516/03
                            CA 40517/03

                            MASON P
                            HODGSON JA
                            MATHEWS AJA

                            Monday 22 August 2005

Irene NOTARAS & Anor v SLY & WEIGALL


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AGLC
Notaras v Sly & Weigall [2005] NSWCA 275
Case
[2005] NSWCA 275
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a claim for professional negligence brought by the appellant, Mr. Notaras, against the respondent law firm, Sly & Weigall. Mr. Notaras alleged that the firm was negligent in advising him not to seek an injunction to prevent the exercise of a power of sale under a mortgage. The dispute centred on the validity and timing of a notice of default issued by the mortgagee.

The primary legal issues before the Court of Appeal were whether the notice of default was invalid or premature, and consequently, whether the advice given by Sly & Weigall to Mr. Notaras not to seek an injunction was negligent. The Court also had to consider the application of section 58A of the *Real Property Act 1900* (NSW) and whether Mr. Notaras suffered any loss as a result of the alleged negligence, particularly in relation to a loss of financial advantage or bargaining opportunity.

The Court found that Mr. Notaras had not established that the notice of default was invalid or premature. Furthermore, the Court held that even if the notice were defective, Mr. Notaras had not demonstrated that he lost anything of value. The Court reasoned that Sly & Weigall was not engaged by Mr. Notaras in relation to the financial dealings concerning the mortgage, and their advice was based on a reasonable belief that any proceedings to restrain the sale would be hopeless and an abuse of process. The Court applied principles of professional negligence, focusing on the duty of care owed by a solicitor and the requirement for a client to prove causation and loss.

The appeals were dismissed, and Sly & Weigall were awarded their costs.

Orders

Orders of the court

Each appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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