Wakim v McNally [2002] FCAFC 208

Wakim v McNally [2002] FCAFC 208

Mr McNally owed the appellant a duty of care and breached it by failing to read and consider Re Richardson and Wren v Mahony, or by failing to raise with senior counsel the apparent omission of equitable remedies from the advice. That breach caused the Official Trustee to discontinue the proceeding against Mrs Nader...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 July 2002
Procedural Posture
Appeal in a Professional Negligence Proceeding Against Solicitors / Full Court Appeal From Orders of a Judge of the Federal Court of Australia
Outcome
Appeal allowed; primary judge's orders set aside; matter relisted for consideration of further relief to which the appellant may be entitled.
Legal Topics
["solicitor's Duty of Care" 'reliance on Advice of Counsel' 'causation of Loss' 'contributory Negligence' 'mitigation of Loss' 'equitable Indemnity and Contribution' 'bankrupt Estate Administration']
['negligence' 'professional Negligence' 'legal Practitioners' 'bankruptcy' 'equity' 'partnership'] ["solicitor's Duty of Care" 'reliance on Advice of Counsel' 'causation of Loss' 'contributory Negligence' 'mitigation of Loss' 'equitable Indemnity and Contribution' 'bankrupt Estate Administration']

Source-derived case record

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Procedural Posture

Appeal in a Professional Negligence Proceeding Against Solicitors / Full Court Appeal From Orders of a Judge of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the respondents breached a duty of care to the appellant by failing to turn their own minds to senior counsel's advice and raise possible deficiencies concerning equitable remedies." "Whether any breach by the respondents caused the discontinuance of the Official Trustee's proceeding against Mrs Nader." "Whether the appellant suffered loss when the Official Trustee's proceeding against Mrs Nader was discontinued." 'Whether the appellant was contributorily negligent.' 'Whether the respondents established that the appellant failed to mitigate his loss.']

Ratio Decidendi

Mr McNally owed the appellant a duty of care and breached it by failing to read and consider Re Richardson and Wren v Mahony, or by failing to raise with senior counsel the apparent omission of equitable remedies from the advice. That breach caused the Official Trustee to discontinue the proceeding against Mrs Nader because, had the issue been raised, it was more likely that counsel would have reconsidered and advised on available equitable relief. The appellant suffered loss when the proceeding was discontinued. The primary judge's findings of contributory negligence and no loss could not stand, and the respondents did not establish failure to mitigate. Quantum was left for further...

Court Disposition

Appeal allowed; primary judge's orders set aside; matter relisted for consideration of further relief to which the appellant may be entitled.

Orders

  • ['The appeal be allowed.' 'The orders made by the primary judge on 20 November 2000 be set aside.' 'The appeal be relisted on a date to be fixed for consideration of the further relief to which the appellant may be entitled.']