Polon v Dorian

In the matter of Polon v Dorian, the plaintiff brought an action against the defendant, a solicitor, seeking damages for losses incurred through investments in an investment scheme. The plaintiff alleged that the defendant's representations concerning the operation of the investment scheme and the safeguards in place for the investors' funds were misleading and deceptive, constituting a breach of section 42 of the Fair Trading Act 1987 (NSW). The plaintiff claimed that the defendant's actions amounted to professional negligence, a breach of fiduciary duty, and misleading and deceptive conduct.

The court was tasked with determining whether the defendant solicitor owed a duty of care to the plaintiff, whether the defendant breached that duty, and if so, whether the plaintiff's reliance on the defendant's representations was reasonable. Additionally, the court had to assess the defendant's defence of contributory negligence and determine the appropriate apportionment of liability between the parties in accordance with the Civil Liability Act 2002 (NSW) and the principles established in relevant case law.

The court found that the defendant did owe a duty of care to the plaintiff, and that duty was breached when the defendant failed to exercise reasonable care in verifying the accuracy of the representations concerning the investment scheme. The plaintiff's reliance on these representations was deemed reasonable, and the court held that an implied retainer existed between the plaintiff and the defendant. Furthermore, the court rejected the defence of contributory negligence and found that the defendant's actions constituted a breach of fiduciary duty. The court applied the Civil Liability Act 2002 (NSW) to apportion the liability between the parties, and determined that damages pursuant to section 1324(10) of the Corporations Act 2001 (Cth) were only available if an injunction was actually sought.

In conclusion, the court awarded the plaintiff damages against the defendant, apportioning liability in accordance with the Civil Liability Act 2002 (NSW). The court found that the defendant was liable for the plaintiff's losses and that the statutory proportionate liability regime was applicable. The court also determined that the claim was an apportionable claim, and assessed the respective degrees of responsibility of the concurrent wrongdoers in accordance with the principles established in relevant case law.