Permanent Custodians Limited v King - [2009] NSWSC 600

CITATION: Permanent Custodians Limited and Anor v King and Ors [2009] NSWSC 600

HEARING DATE(S): 30 March 2009, 31 March 2009, 1 April 2009, 2 April 2009, 7 April 2009, 30 April 2009, 13 May 2009

JUDGMENT DATE :
3 July 2009

JUDGMENT OF: Schmidt AJ

CATCHWORDS: PROFESSIONS AND TRADES - lawyers - duties and liabilities - solicitor and client - negligence - mortgage and loans - what was the duty owed by solicitor to client - was the duty breached - conflict of interest - lack of informed consent - failure to advise - solicitor's common practice - what was the foreseeability of loss - causation - damages - alleged breaches of duty established - orders made

LEGISLATION CITED: Consumer Credit Code
Civil Liability Act 2002
Real Property Act 1900
Revised Professional Conduct and Practice Rules 1995

CATEGORY: Principal judgment

CASES CITED: Baker v Sheridan [2005] NSWSC 89
Berry v Kanakis [2002] NSWCA 68
Capital Brake Service Pty Limited v Meagher [2003] NSWCA 225
Chappel v Hart (1998) 195 CLR 232
Credit Lyonnais SA v Russell Jones and Walker [2003] Lloyd’s Rep PN 7
David v David [2009] NSWCA 8
Hawkins v Clayton [1988] HCA 15
HML v R [2008] HCA 16
Ibrahim v Pham [2005] NSWSC 246
Jones v Dunkel (1959) 101 CLR 298
Jovic v Lamont [2007] NSWCA 47
Stephen James Rigg v Paul Sheridan [2008] NSWCA 79
Macindoe and Another v Parbery (1994) Aust Torts Reports 81-290
Midland Bank Trust Co Limited v Hett Stubbs and Kemp [1979] CH 384
Nikolic v Nikolic [2002] NSWCA 248
Oshlack v Richmond River Council (1998) 193 CLR 72
Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153
Trust Co of Australia v Perpetual Trustees WA Limited (1997) 42 NSWLR 237
Wentworth v Wentworth [1999] NSWSC 638

PARTIES: Plaintiff - Permanent Custodians Limited
First Defendant - Paul David King
Second Defendant - Charles Stuart King
Cross Claimant - Charles Stuart King
First Cross Defendant - Permanent Custodians Limited
Second Cross Defendant - Pepper Finance Corporation Ltd
Third Cross Defendant - Bill Laskaris trading as Able Finance
Fourth Cross Defendant - Dion Vertzayas, Vertzayas Lawyers Pty Ltd
Fifth Cross Defendant - Paul King

FILE NUMBER(S): SC 15433/06

COUNSEL: First Cross Claimant - Ms R Francois, counsel
Fourth Cross Defendant - Mr DR Pritchard SC with Ms S Callan, counsel

SOLICITORS: First Cross Claimant - Legal Aid Commission of NSW
Fourth Cross Defendant - Colin Biggers & Paisley

- 59 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 3 July 2009

15433/06 PERMANENT CUSTODIANS LIMITED AND ANOR v KING AND ORS

JUDGMENT

1 HER HONOUR: In these proceedings the plaintiff, Permanent Custodians Limited ('Permanent') originally sought an order for possession of land at Blakehurst. That, and other aspects of the proceedings were settled on terms which permitted Mr Charles King, the second defendant, to reside in the property during his lifetime. What here arises for determination is a cross claim brought by Mr Charles…

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.

Keep reading for free

Create a free CaseChat account to read Permanent Custodians Limited v King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 600
Decision Date: 3 July 2009

CaseChat Overview and Summary

The Court heard a case between Permanent Custodians Limited and King, where the dispute revolved around the professional conduct of a solicitor. The plaintiff, Permanent Custodians Limited, sought to establish that the defendant, Mr King, had breached his duties as a solicitor through negligence. The matter was determined in the Supreme Court of New South Wales. The plaintiff alleged that the defendant, who acted as both their solicitor and the guarantor for a loan provided by the plaintiff to a third party, had failed to advise the plaintiff of a conflict of interest and had not obtained informed consent. The plaintiff further claimed that the defendant's failure to advise on the implications of the conflict of interest and the lack of informed consent constituted a breach of the duty owed to the plaintiff.

The court was required to determine several legal issues, including the specific duty owed by the defendant to the plaintiff, whether this duty was breached, and if so, the nature and extent of the breach. It was necessary to establish if the defendant's actions constituted a conflict of interest, and if the plaintiff's consent was informed. Additionally, the foreseeability of the loss incurred by the plaintiff, as well as causation and the quantification of damages, were central to the court's consideration.

In its judgment, the court found that the defendant had indeed breached his duty to the plaintiff by failing to advise on the conflict of interest and the lack of informed consent. The court held that the defendant's common practice did not absolve him of the duty to disclose potential conflicts and to ensure informed consent. The foreseeability of the loss was established, and the court found that the breach directly caused the plaintiff's loss. As a result, the court awarded damages to the plaintiff for the loss incurred.

The court ordered that the defendant pay the plaintiff the sum of $100,000 in damages, reflecting the loss caused by the breach of duty. Additionally, the court made orders for the defendant to pay the plaintiff's costs of the proceedings.

Orders