Lee v. Brand & Anor. [2003] NSWCA 198

Lee v. Brand & Anor. [2003] NSWCA 198

Mr. Lee did not owe a duty of care to Mr. Brand because there was no solicitor/client relationship regarding the guarantee transaction, and no relevant damages were suffered by Mr. Brand due to any act or omission of Mr. Lee. Mr. Brand was not discharged from liability under the guarantee because the alterations to the mortgage and changes to the secured property did not affect his liability. Mr. Lee is liable to Mr. Sahota for damages in respect of the loss of security caused by failure to protect Sahota's mortgage, but the precise amount is to be assessed after Sahota has exhausted remedies against Mr. Brand.

Parties
Appellant: Alexander Lee; First Respondent: Robert John Brand; Second Respondent: Narinder Singh Sahota
Jurisdiction
Australia
Judgment Date
24 July 2003
Procedural Posture
Appeal and Cross Appeal / Court of Appeal Judgment
Outcome
Appeal by Mr. Lee against Mr. Brand allowed; Mr. Brand's cross-appeal dismissed; quantified damages judgment for Mr. Sahota set aside and replaced with judgment for damages to be assessed; other orders as per Court's reasons.
Legal Topics
Solicitors Acting for Lender and Guarantee, Damages Assessment Against Solicitor, Second Mortgage, Guarantee Liability, Duty of Care in Solicitor Client Relationships
Legal Profession Damages Solicitors Acting for Lender and Guarantee Damages Assessment Against Solicitor Second Mortgage Guarantee Liability Duty of Care in Solicitor Client Relationships

Case Brief

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Parties

Alexander Lee

Appellant

Robert John Brand

First Respondent

Narinder Singh Sahota

Second Respondent

Procedural Posture

Appeal and Cross Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether Mr. Lee owed a duty of care to Mr. Brand in the guarantee transaction
  2. 2 Whether Mr. Lee was liable to indemnify Mr. Brand and for damages to Mr. Sahota
  3. 3 Whether Mr. Brand was discharged from liability as guarantor due to alterations in the mortgage documentation

Ratio Decidendi

Mr. Lee did not owe a duty of care to Mr. Brand because there was no solicitor/client relationship regarding the guarantee transaction, and no relevant damages were suffered by Mr. Brand due to any act or omission of Mr. Lee. Mr. Brand was not discharged from liability under the guarantee because the alterations to the mortgage and changes to the secured property did not affect his liability. Mr. Lee is liable to Mr. Sahota for damages in respect of the loss of security caused by failure to protect Sahota's mortgage, but the precise amount is to be assessed after Sahota has exhausted remedies against Mr. Brand.

Court Disposition

Appeal by Mr. Lee against Mr. Brand allowed; Mr. Brand's cross-appeal dismissed; quantified damages judgment for Mr. Sahota set aside and replaced with judgment for damages to be assessed; other orders as per Court's reasons.

Orders

  • Mr. Lee's appeal against Mr. Brand allowed with costs.
  • Mr. Brand to have Suitors Fund certificate if otherwise entitled.