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Zakka v Elias

Zakka v Elias

Case [2013] NSWCA 119 13 May 2013

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zakka v Elias [2013] NSWCA 119
Hearing dates: 18 April 2013
Decision date: 13 May 2013
Before: Ward JA at [1]
Emmett JA at [145]
Tobias AJA at [160]
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 - solicitors - failure to warn - whether an holistic
warning by itself is sufficient or whether the particular incidents giving rise to
that warning must be provided
TORTS - vicarious liability - whether a solicitor with a restricted practising certificate is thereby acting outside the course of employment if breaching a restriction on their practising certificate
Legislation Cited: Civil Liability Act 2002
Contracts Review Act 1980
Legal Profession Act 2004
Cases Cited: AJH Lawyers Pty Ltd v Hamo [2010] VSC 225
Baiyai Pty Ltd v Guy [2009] NSWCA 65
Bannister and Legal Practitioners Ordinance 1970 - 1975 ex parte Hartstein (1975) 5 ACTR 100
Black Range Tin v Shoobert [1973] WAR 131
Bugge v Brown [1919] 26 CLR 110
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Cousins v Cousins (18 Dec 1990, unreported NSWCA judgment)
David v David [2009] NSWCA 8
Dominic v Riz [2009] NSWCA 216
Dyer v Munday (1895) 1 QB 742
Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28
Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782
Hamlyn v Houston & Co (1903) 1 KB 81
Harvey & Anor v State of NSW [2006] NSWSC 1046
Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21
Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405
Knaggs v J A Westawav & Sons Pty Ltd (1996) 40 NSWLR 476
Kowalczuk v Accom Finance [2008] NSWCA 343
Limpus v London General Omnibus Co (1862) 1 H & C 526
Lloyd v Grace, Smith & Co. (1912) AC 732
Lucantonio v Kleinert [2009] NSWSC 853
Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394
Plumb's Case (1914) AC 62
State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511
Withyman v State of New South Wales [2013] NSWCA 10
Texts Cited: G E Dal Pont "Lawyers Professional Responsibility", 5th Edn, Thompsons Reuters Professional Australia Ltd, Sydney
Category: Principal judgment
Parties: Victor Zakka (Appellant)
Georges Elias trading as Cadmus Lawyers (First Respondent)
Delilah Rahe (Second Respondent) (Submitting Appearance)
Representation: Counsel:
D Murr SC with Ms M Fraser (Appellant)
R Darke SC with I Griscti (First Respondent)
Solicitors:
Maxwell Berghouse & Ives (Appellant)
HWL Ebsworth (First Respondent)
Tudehope Partners (Second…

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.

Continue reading Zakka v Elias

Details

AGLC: Zakka v Elias [2013] NSWCA 119
Case: [2013] NSWCA 119
Decision Date: 13 May 2013

CaseChat Overview and Summary

In *Zakka v Elias*, the New South Wales Court of Appeal considered a claim brought by the plaintiff against a solicitor. The dispute concerned allegations of professional negligence, specifically a failure to adequately warn the plaintiff about certain risks. The court was also required to determine issues of vicarious liability in the context of a solicitor holding a restricted practising certificate.

The central legal questions before the Court of Appeal were whether a general warning about risks was sufficient in professional negligence claims against solicitors, or if the specific incidents giving rise to that warning must also be disclosed. Furthermore, the court had to consider whether a solicitor acting in breach of a restriction on their practising certificate was necessarily acting outside the course of their employment, thereby precluding vicarious liability for the firm.

The Court of Appeal dismissed the appeal. While the specific reasoning is not detailed in the provided text, the outcome suggests the court found that the solicitor's conduct did not amount to actionable negligence or that the firm was not vicariously liable. The dismissal of the appeal indicates that the court likely found the warnings provided to be adequate or that the breach of the practising certificate did not, in itself, remove the solicitor from the scope of employment for the purposes of vicarious liability.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Zakka v Elias [2013] NSWCA 119

Most Recent Citation

Payton Securities Pty Ltd v Mason White McDougall (Hurstbridge) Pty Ltd [2021] VSC 375

Cases citing this decision · 6 of 6 shown

Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2)
[2024] NSWCA 232 Para 31

…quest by the client to undertake the task and whether the solicitor took steps that might have been expected had there been a retainer: Zakka v Elias [2013] NSWCA 119 at [61] (Ward JA, Emmett JA and Tobias AJA agreeing). Conversely, it seems to me, that steps being taken that might not have been expected had there…
Anderson v Canaccord Genuity Financial Ltd
[2022] NSWSC 58

…2003) 212 CLR 484; [2003] HCA 15 Zakka v Elias [2013] NSWCA 119 Texts Cited: A Stafford QC and S Ritchie Q, Fiduciary Duties: Directors and Employees (2nd ed, 2015, Jordan Publishing Limited) HG Beale, Chitty on Contracts (Sweet & Maxwell, 33rd ed, 2018) Devonshire and Havelock, The Impact of Equity and Restitution…
Payton Securities Pty Ltd v Mason White McDougall (Hurstbridge) Pty Ltd
[2021] VSC 375

…& Ors ; Atkins v Interprac & Crole [2007] VSC 445; David v David [2009] NSWCA 8; Provident Capital Ltd v Papa [2013] NSWCA 36; Zakka v Elias [2013] NSWCA 119; Rexstraw v Johnson [2003] NSWCA 287 considered.…
Richtoll Pty Ltd v WW Lawyers (in Liquidation) Pty Ltd
[2016] NSWSC 438

…ilding Society Ltd [2002] NSWCA 164 Winnote Pty Ltd v Page [2006] NSWCA 287; 68 NSWLR 531 Zakka v Elias [2013] NSWCA 119 Category: Principal judgment Parties: Richtoll Pty Ltd – First Plaintiff Ongoing Financial Services Pty Ltd – Second Plaintiff WW Lawyers (In Liquidation) Pty Ltd - Defendant Representation: Coun…
Howe v Fischer
[2014] NSWCA 286 Para 1

…position that has been endorsed more than once in this Court (see, for example, Attard v James Legal Pty Ltd [2010] NSWCA 311 at [131], Zakka v Elias [2013] NSWCA 119 at [105]; Takla v Nasr [2013] NSWCA 435 at [38]) and is consistent with observations of intermediate appellate courts elsewhere in Australia (see, fo…
Proude v Visic (No 4)
[2013] SASC 154 Para 8

…, Callinan and Heydon JJ. [56] Austrust Ltd v Astley (1996) 67 SASR 207 at 227-228 per Doyle CJ and Olsson J (Duggan J agreeing); Zakka v Elias [2013] NSWCA 119 at [85] per Ward JA (Emmett JA and Tobias AJA agreeing). [57] Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [9] per Gleeson CJ and [88] per Mc…

View all 6 citing cases →

Cases cited in this decision · 21 of 21 shown

Withyman v State of New South Wales
[2013] NSWCA 10 Para 1

…as held out by the employer as employed to do, and the wrongful conduct (see Allsop P, as his Honour then was, in Withyman v State of New South Wales [2013] NSWCA 10).…
AJH Lawyers Pty Ltd v Hamo
[2010] VSC 225 Para 1

…In AJH Lawyers Pty Ltd v Hamo [2010] VSC 225) Beach J held that there was a duty on solicitors to give 'holistic' advice in and around the client's retainer, unless the retainer was specifically limited to avoid the need for such advice. In " Lawyers Professional Responsibility ", 5th Edn, Dal Pont observes (at […
Kelly v Jowett
[2009] NSWCA 278

…3) 1 KB 81 Harvey & Anor v State of NSW [2006] NSWSC 1046 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405 Knaggs v J A Westawav & Sons Pty Ltd (1996) 40 NSWLR 476 Kowalczuk v Accom Finance [2008] NSWCA 343 Limpus v London General Omnibus Co (1862) 1 H & C…
Lucantonio v Kleinert
[2009] NSWSC 853 Para 1

…that the Court was sufficiently equipped to form an opinion about legal practice unaided by expert opinion), Mr Murr relied on Lucantonio v Kleinert [2009] NSWSC 853. There, Brereton J said (at [85]) that, in a case of legal professional negligence "especially one concerning the conduct of a member of the Bar, the…
Dominic v Riz
[2009] NSWCA 216 Para 1

…e declined to act it is unlikely that the transactions (there, referring to both parts of the transaction) could have proceeded (citing Dominic v Riz [2009] NSWCA 216 at [94]-[96]). I am not satisfied that Ms Rahe had a duty to cease to act in relation to the First Mortgage Company loan; but even if she did, Ms Rah…
Baiyai Pty Ltd v Guy
[2009] NSWCA 65 Para 1

…not expressed but was presumably an inference drawn from the surrounding facts and objective circumstances - as is recognised in Baiyai Pty Ltd v Guy [2009] NSWCA 65 to be a reliable guide on questions of causation. There is no challenge to that finding.…
David v David
[2009] NSWCA 8 Para 1

…The thrust of Mr Zakka's appeal on this first issue is the contention that Ms Rahe had a penumbral duty, in the sense considered in David v David [2009] NSWCA 8 (and referred to in the witness box by Mr Moses), to provide advice beyond the scope of her retainer once she became aware that the Alispur loan was at a…
Kowalczuk v Accom Finance Pty Ltd
[2008] NSWCA 343

…1) 207 CLR 21 Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405 Knaggs v J A Westawav & Sons Pty Ltd (1996) 40 NSWLR 476 Kowalczuk v Accom Finance [2008] NSWCA 343 Limpus v London General Omnibus Co (1862) 1 H & C 526 Lloyd v Grace, Smith & Co. (1912) AC 732 Lucantonio v Kleinert [2009] NSWSC 853 Mackay v Commer…
Ffrench v Sestili
[2007] SASC 241

…reported NSWCA judgment) David v David [2009] NSWCA 8 Dominic v Riz [2009] NSWCA 216 Dyer v Munday (1895) 1 QB 742 Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28 Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782 Hamlyn v Houston & Co (1903) 1 KB 81 Harvey & Anor v State of NSW [2006] NSWSC 1046 Hol…
Chandra v Perpetual Trustee Victoria Limited
[2006] NSWSC 1046 Para 1

…ted for Mr Elias that this is a case where the employee engaged in a "frolic" of her own (referring by way of example to Harvey & Anor v State of NSW [2006] NSWSC 1046 at [239]-[240]). I agree. Ms Rahe was not acting in intended pursuit of Mr Elias' interests or in intended performance of her work as an employee in…
Frost & Sutcliffe v Tuiara
[2003] NZCA 277 Para 1

…In Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782 the Court of Appeal in New Zealand rejected a claim of negligence against a solicitor who gave his clients a general warning against entry (at the request of a relative of theirs) into a particular transaction. The solicitor in question had given the…
New South Wales v Lepore
[2003] HCA 4

…2 Lucantonio v Kleinert [2009] NSWSC 853 Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394 Plumb's Case (1914) AC 62 State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511 Withyman v State of New South Wales [2013] NSWCA 10 Texts Cited: G E Dal Pont "Lawyers Professional Responsibility", 5th Edn, Tho…
Hollis v Vabu Pty Ltd
[2001] HCA 44

…iara [2003] NZCA 277; [2004] 1 NZLR 782 Hamlyn v Houston & Co (1903) 1 KB 81 Harvey & Anor v State of NSW [2006] NSWSC 1046 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405 Knaggs v J A Westawav & Sons Pty Ltd (1996) 40 NSWLR 476 Kowalczuk v Accom Fi…
Chappel v Hart
[1998] HCA 55

…s Ordinance 1970 - 1975 ex parte Hartstein (1975) 5 ACTR 100 Black Range Tin v Shoobert [1973] WAR 131 Bugge v Brown [1919] 26 CLR 110 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Cousins v Cousins (18 Dec 1990, unreported NSWCA judgment) David v David [2009] NSWCA 8 Dominic v Riz [2009] NSWCA 216 Dyer v Mun…
Bugge v Brown
[1919] HCA 5 Para 1

…Elias until he saw lawyers in relation to bringing his proceedings (Red 53S). Mr Darke referred to what was said by Isaacs J in Bugge v Brown [1919] 26 CLR 110 at p 116 (and see Hollis v Vabu Pty Limited (2001) 207 CLR 21 at [38]). Relevantly, in Bugge , his Honour said that :…
[2004] 1 NZLR 782
[2004] 1 NZLR 782 Para 1

…In Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782 the Court of Appeal in New Zealand rejected a claim of negligence against a solicitor who gave his clients a general warning against entry (at the request of a relative of theirs) into a particular transaction. The solicitor in question had given the f…
Dyer v Munday
(1895) 1 QB 742

…998) 195 CLR 232 Cousins v Cousins (18 Dec 1990, unreported NSWCA judgment) David v David [2009] NSWCA 8 Dominic v Riz [2009] NSWCA 216 Dyer v Munday (1895) 1 QB 742 Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28 Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782 Hamlyn v Houston & Co (1903) 1 KB…
Hamlyn v Houston & Co
(1903) 1 KB 81

…95) 1 QB 742 Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28 Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782 Hamlyn v Houston & Co (1903) 1 KB 81 Harvey & Anor v State of NSW [2006] NSWSC 1046 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 Kelly v Jowett [2009] NSWCA 278; (2009) 76…
(1912) AC 732
(1912) AC 732

…y Ltd (1996) 40 NSWLR 476 Kowalczuk v Accom Finance [2008] NSWCA 343 Limpus v London General Omnibus Co (1862) 1 H & C 526 Lloyd v Grace, Smith & Co. (1912) AC 732 Lucantonio v Kleinert [2009] NSWSC 853 Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394 Plumb's Case (1914) AC 62 State of NSW v Lepore […
(1914) AC 62
(1914) AC 62

…d v Grace, Smith & Co. (1912) AC 732 Lucantonio v Kleinert [2009] NSWSC 853 Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394 Plumb's Case (1914) AC 62 State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511 Withyman v State of New South Wales [2013] NSWCA 10 Texts Cited: G E Dal Pont "Lawyers Profess…
Limpus v London General Omnibus Co
158 ER 993 Para 1

…employee notwithstanding that the conduct in question had been in breach of a prohibition by the employer (such as Ffrench v Sestili [2007] SASC 241; Limpus v London General Omnibus Co (1862) 1 H & C 526; and Black Range Tin v Shoobert [1973] WAR 131).…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
1 mention
Contracts Review Act 1980 (NSW)
1 mention
Legal Profession Act 2004 (Vic)
1 mention (from Para 1)

Medium Neutral Citation:	Zakka v Elias [2013] NSWCA 119
Hearing dates:	18 April 2013
Decision date:	13 May 2013
Before:	Ward JA at [1] Emmett JA at [145] Tobias AJA at [160]
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 - solicitors - failure to warn - whether an holistic warning by itself is sufficient or whether the particular incidents giving rise to that warning must be provided TORTS - vicarious liability - whether a solicitor with a restricted practising certificate is thereby acting outside the course of employment if breaching a restriction on their practising certificate
Legislation Cited:	Civil Liability Act 2002 Contracts Review Act 1980 Legal Profession Act 2004
Cases Cited:	AJH Lawyers Pty Ltd v Hamo [2010] VSC 225 Baiyai Pty Ltd v Guy [2009] NSWCA 65 Bannister and Legal Practitioners Ordinance 1970 - 1975 ex parte Hartstein (1975) 5 ACTR 100 Black Range Tin v Shoobert [1973] WAR 131 Bugge v Brown [1919] 26 CLR 110 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Cousins v Cousins (18 Dec 1990, unreported NSWCA judgment) David v David [2009] NSWCA 8 Dominic v Riz [2009] NSWCA 216 Dyer v Munday (1895) 1 QB 742 Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28 Frost & Sutcliffe v Tuiara [2003] NZCA 277; [2004] 1 NZLR 782 Hamlyn v Houston & Co (1903) 1 KB 81 Harvey & Anor v State of NSW [2006] NSWSC 1046 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405 Knaggs v J A Westawav & Sons Pty Ltd (1996) 40 NSWLR 476 Kowalczuk v Accom Finance [2008] NSWCA 343 Limpus v London General Omnibus Co (1862) 1 H & C 526 Lloyd v Grace, Smith & Co. (1912) AC 732 Lucantonio v Kleinert [2009] NSWSC 853 Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394 Plumb's Case (1914) AC 62 State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511 Withyman v State of New South Wales [2013] NSWCA 10
Texts Cited:	G E Dal Pont "Lawyers Professional Responsibility", 5th Edn, Thompsons Reuters Professional Australia Ltd, Sydney
Category:	Principal judgment
Parties:	Victor Zakka (Appellant) Georges Elias trading as Cadmus Lawyers (First Respondent) Delilah Rahe (Second Respondent) (Submitting Appearance)
Representation:	Counsel: D Murr SC with Ms M Fraser (Appellant) R Darke SC with I Griscti (First Respondent) Solicitors: Maxwell Berghouse & Ives (Appellant) HWL Ebsworth (First Respondent) Tudehope Partners (Second…