CARR & ANOR v FISCHER & ORS [2004] NSWSC 1079

CARR & ANOR v FISCHER & ORS [2004] NSWSC 1079

The defendants' retainer was limited to checking the validity and legal structure of the Fairfield Medical Arcade Unit Trust and related specified legal matters, including searches and information about the trustee, title, trust deed, unit holdings and bankruptcy status. It did not extend to a general investigation of everything Jack Roberts had done or to financial or commercial advice on the investment or later ventures. Within that limited retainer the plaintiffs did not prove any breach. In any event, the plaintiffs did not prove reliance or causation: Mr Carr would have proceeded in any event, later investments and the proposed float were outside the scope of the advice and involved...

Jurisdiction
Australia
Judgment Date
16 November 2004
Procedural Posture
Professional Negligence Claim Against Solicitors / Judgment After Hearing in the Supreme Court of New South Wales, Common Law Division
Outcome
Verdict and judgment for the defendants; the plaintiffs' action failed.
Legal Topics
['terms of Retainer' 'breach of Retainer' "solicitors' Duty of Care" 'reliance' 'proof of Loss' 'novus Actus Interveniens' 'remoteness of Damage' 'unit Trusts' 'bankruptcy Searches']
['professional Negligence' 'legal Practitioners' 'contract' 'tort' 'causation'] ['terms of Retainer' 'breach of Retainer' "solicitors' Duty of Care" 'reliance' 'proof of Loss' 'novus Actus Interveniens' 'remoteness of Damage' 'unit Trusts' 'bankruptcy Searches']

Case Brief

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Procedural Posture

Professional Negligence Claim Against Solicitors / Judgment After Hearing in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["What were the terms and extent of the defendants' retainer in relation to the Fairfield Medical Arcade Unit Trust investment." 'Whether the defendants breached any contractual or common law duty by the conduct of their investigations and advice, including the bankruptcy search and enquiries about the trust and trustee.' "Whether any alleged breach caused the plaintiffs' losses, including whether the plaintiffs relied on the defendants' advice and whether later investments or participation in the proposed float broke the chain of causation." 'Whether the plaintiffs proved the loss allegedly suffered from the investments.']

Ratio Decidendi

The defendants' retainer was limited to checking the validity and legal structure of the Fairfield Medical Arcade Unit Trust and related specified legal matters, including searches and information about the trustee, title, trust deed, unit holdings and bankruptcy status. It did not extend to a general investigation of everything Jack Roberts had done or to financial or commercial advice on the investment or later ventures. Within that limited retainer the plaintiffs did not prove any breach. In any event, the plaintiffs did not prove reliance or causation: Mr Carr would have proceeded in any event, later investments and the proposed float were outside the scope of the advice and involved...

Court Disposition

Verdict and judgment for the defendants; the plaintiffs' action failed.

Orders

  • ['I enter a verdict and judgment for the defendants;' "The plaintiffs are to pay the defendants' costs;" 'The exhibits are to be retained for 28 days; in the event that an appeal is lodged in accordance with the Rules of Court, thereafter the exhibits will continue to be retained pending an order of the Court of...