Pola, Leo Vincent & Ors v Commonwealth Bank of Australia & Ors & Commonwealth Bank of Australia v Pola, Leo Vincent & Ors [1997] FCA 1476

Pola, Leo Vincent & Ors v Commonwealth Bank of Australia & Ors & Commonwealth Bank of Australia v Pola, Leo Vincent & Ors [1997] FCA 1476

The application failed because the proceedings against the Bank and accountants were commenced to secure relief on claims believed to have reasonable prospects and not for a predominant collateral purpose; Watsons were not negligent in joining the accountants because they acted on counsel's advice and the Polas' instructions about reliance on Mr Conomos; Stefan was impliedly authorised as his father's agent and authorised both disclosure of the $700,000 land price and the exchange of contracts; and Watsons adequately warned the Polas of the risks of exchanging before finalising the Bank's discharge terms. Any conveyancing loss would in any event have been caused by the Polas' refusal to...

Jurisdiction
Australia
Judgment Date
19 December 1997
Procedural Posture
Application Alleging Abuse of Process, Solicitor Negligence and Breach of Retainer / Reasons for Judgment After Hearing
Outcome
Application dismissed with costs.
Legal Topics
['abuse of Process' 'collateral Purpose' 'solicitor Negligence' 'breach of Retainer' 'implied Agency' 'mortgage Discharge' 'sale of Mortgaged Land' 'joinder of Parties' 'causation and Damages']
['civil Procedure' 'tort' 'professional Negligence' 'agency' 'contract' 'conveyancing'] ['abuse of Process' 'collateral Purpose' 'solicitor Negligence' 'breach of Retainer' 'implied Agency' 'mortgage Discharge' 'sale of Mortgaged Land' 'joinder of Parties' 'causation and Damages']

Case Brief

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Procedural Posture

Application Alleging Abuse of Process, Solicitor Negligence and Breach of Retainer / Reasons for Judgment After Hearing

Legal Issues

  1. 1 ["Whether the proceedings against the Bank and the accountants were instituted for the predominant collateral purpose of improving the Polas' bargaining position and therefore constituted an abuse of process." 'Whether Watsons were negligent in joining Mr Conomos and his company as respondents.' 'Whether Watsons acted without instructions in informing the Bank that the purchase price for the land was $700,000.' "Whether Stefan was acting as his father's agent in dealings with Watsons about the conveyancing transaction." 'Whether Watsons acted without instructions in exchanging contracts for the sale of Paddington.' 'Whether Watsons failed to give adequate advice about the risk that the Bank would refuse to discharge its mortgage on settlement.' 'Whether any alleged negligence caused the claimed losses.']

Ratio Decidendi

The application failed because the proceedings against the Bank and accountants were commenced to secure relief on claims believed to have reasonable prospects and not for a predominant collateral purpose; Watsons were not negligent in joining the accountants because they acted on counsel's advice and the Polas' instructions about reliance on Mr Conomos; Stefan was impliedly authorised as his father's agent and authorised both disclosure of the $700,000 land price and the exchange of contracts; and Watsons adequately warned the Polas of the risks of exchanging before finalising the Bank's discharge terms. Any conveyancing loss would in any event have been caused by the Polas' refusal to...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicants pay the fourth respondents' taxed costs of the application."]