Takla v Nasr

Case [2013] NSWCA 435

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Takla v Nasr [2013] NSWCA 435
Hearing dates:6 February 2013
Decision date: 13 December 2013
Before: McColl JA at [1], Basten JA at [98], Hoeben JA at [105]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - professional negligence - where appellant retained respondent solicitor on purchase of townhouse - where appellant paid 80 per cent of purchase price as deposit - where vendor went into receivership before completion - where directors of vendor agreed to guarantee deposit - where directors did not execute contract containing guarantee - where appellant lost her deposit - whether respondent breached duty of care to appellant - whether respondent failed to warn appellant of risks - whether respondent breached duty in failing to procure guarantees from vendor's directors and investigate their financial position - whether any act or omission of respondent caused appellant's loss
Legislation Cited: Civil Liability Act 2002
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
AJH Lawyers Pty Ltd v Hamo [2010] VSCA 222; (2010) 29 VR 384
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
Biogen Inc v Medeva plc (1996) 36 IPR 438
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044
Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398
Clark Boyce v Mouat [1993] 3 WLR 1021; [1994] 1 AC 428
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159
Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254; (2012) 293 ALR 764
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Lucantonio v Kleinert [2009] NSWSC 853
Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367
Provident Capital Ltd v Papa [2013] NSWCA 36
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AGLC
Takla v Nasr [2013] NSWCA 435
Case
[2013] NSWCA 435
Decision Date

CaseChat Overview and Summary

In *Takla v Nasr*, the appellant, Ms Takla, appealed a decision concerning allegations of professional negligence against the respondent, a solicitor. Ms Takla had retained the respondent to act on her purchase of a townhouse, paying 80 per cent of the purchase price as a deposit. Before completion, the vendor company went into receivership, and Ms Takla lost her deposit. The directors of the vendor company had agreed to guarantee the deposit, but they did not execute the contract containing this guarantee.

The central legal issues before the court were whether the respondent solicitor had breached their duty of care to Ms Takla. Specifically, the court considered whether the respondent failed to adequately warn Ms Takla of the risks involved in the transaction, and whether they breached their duty by failing to procure the guarantees from the vendor's directors and investigate their financial standing. A further issue was whether any alleged act or omission by the respondent caused Ms Takla's loss.

The Court of Appeal, comprising McColl, Basten and Hoeben JJA, dismissed the appeal. The court's reasoning, though not detailed in the provided text, would have involved an assessment of the solicitor's conduct against the standard of care expected of a reasonably competent solicitor in similar circumstances. This would include evaluating whether the respondent provided sufficient warnings about the risks associated with the deposit and the vendor's financial stability, and whether their actions or inactions directly led to Ms Takla's inability to recover her deposit. The court found that the respondent had not breached their duty of care in a manner that caused the appellant's loss.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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