Bakovski v Lenehan [2014] NSWSC 671

Bakovski v Lenehan [2014] NSWSC 671

The solicitor (second defendant) breached the duty of care owed to the plaintiffs by failing to adequately advise them of the nature, risks, and consequences of the loan/mortgage transaction, particularly given their misunderstanding, limited English proficiency, and the harsh contractual terms. The first defendant was vicariously liable for these acts. The plaintiffs would not have proceeded with the transaction if appropriately advised. There was no contributory negligence due to the plaintiffs’ unsophisticated background and reasonable reliance on professional advice. Loss was apportioned under Part 4 of the Civil Liability Act 2002, with 40% attributed to the defendants and 60% to the...

Jurisdiction
Australia
Judgment Date
27 May 2014
Procedural Posture
Principal Judgment / Judgment After Hearing
Outcome
Judgment for the plaintiffs against the second defendant for breach of duty under the retainer, and against the first defendant as vicariously liable. Damages awarded at 40% apportionment, with interest. Leave granted for further submissions on quantification and costs.
Legal Topics
["solicitor's Duty of Care" 'breach of Retainer' 'professional Negligence' 'proportionate Liability' 'causation' 'contributory Negligence']
['negligence' 'professional Negligence' 'contract' 'civil Procedure'] ["solicitor's Duty of Care" 'breach of Retainer' 'professional Negligence' 'proportionate Liability' 'causation' 'contributory Negligence']

Case Brief

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Procedural Posture

Principal Judgment / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant solicitor failed to advise the plaintiffs on the nature and risks of a loan/mortgage transaction' 'Whether the defendant breached their duty of care and/or retainer' 'Whether the plaintiffs suffered loss and damage as a result' 'Whether there is contributory negligence by the plaintiffs' 'Whether the liability is apportionable under Part 4 of the Civil Liability Act 2002 (NSW)']

Ratio Decidendi

The solicitor (second defendant) breached the duty of care owed to the plaintiffs by failing to adequately advise them of the nature, risks, and consequences of the loan/mortgage transaction, particularly given their misunderstanding, limited English proficiency, and the harsh contractual terms. The first defendant was vicariously liable for these acts. The plaintiffs would not have proceeded with the transaction if appropriately advised. There was no contributory negligence due to the plaintiffs’ unsophisticated background and reasonable reliance on professional advice. Loss was apportioned under Part 4 of the Civil Liability Act 2002, with 40% attributed to the defendants and 60% to the...

Court Disposition

Judgment for the plaintiffs against the second defendant for breach of duty under the retainer, and against the first defendant as vicariously liable. Damages awarded at 40% apportionment, with interest. Leave granted for further submissions on quantification and costs.

Orders

  • ['Judgment for plaintiffs against both defendants at 40% of total liability (reflecting apportionment)' 'Damages of $243,278.41 awarded' 'Pre-judgment interest on $243,278.41 in accordance with the Civil Procedure Act 2005, Uniform Civil Procedure Rules 2005, and Practice Note SC Gen 16, calculated from 11 December...