Notaras v Sly & Weigall

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.