Fahd v Kenneally [2011] NSWCA 419

Fahd v Kenneally [2011] NSWCA 419

The respondent was not in breach of her retainer or duty of care. The scope of retainer was limited by Mr Fahd's clear instructions not to document or advise further on the side agreement. The respondent properly advised of enforceability risks; any further obligation would exceed reasonable professional requirements. Even if insertion of a term to preserve the side agreement were the correct course, there was no evidence Mr Fahd would have accepted such advice. Appeal dismissed.

Jurisdiction
Australia
Judgment Date
22 December 2011
Procedural Posture
Appeal / Court of Appeal; Judgment
Outcome
Appeal dismissed with costs
Legal Topics
['scope of Retainer' 'duty of Care' 'breach of Retainer' 'breach of Duty of Care' 'collateral Contracts' 'side Agreement' 'conveyancing Act']
['professional Negligence' 'contract Law' 'property Law'] ['scope of Retainer' 'duty of Care' 'breach of Retainer' 'breach of Duty of Care' 'collateral Contracts' 'side Agreement' 'conveyancing Act']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Court of Appeal; Judgment

Legal Issues

  1. 1 ['Whether the respondent breached an implied term of retainer to advise and act with reasonable skill and care regarding enforceability of a side agreement' 'Whether the respondent owed or breached a duty of care in drafting contracts for sale to ensure enforceability of collateral agreement' 'Whether scope of retainer included obligation to address impact of contract terms on side agreement']

Ratio Decidendi

The respondent was not in breach of her retainer or duty of care. The scope of retainer was limited by Mr Fahd's clear instructions not to document or advise further on the side agreement. The respondent properly advised of enforceability risks; any further obligation would exceed reasonable professional requirements. Even if insertion of a term to preserve the side agreement were the correct course, there was no evidence Mr Fahd would have accepted such advice. Appeal dismissed.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed' "Appellants to pay respondent's costs"]