Michael Peter Johnston v Roderick Alexander Smith & Ors [2005] NSWSC 433

Michael Peter Johnston v Roderick Alexander Smith & Ors [2005] NSWSC 433

Although the first defendant breached his duty by taking instructions from a third party and sending a false declaration, those breaches were remedied when the first defendant obtained the plaintiff's instructions and explained the mortgage in person before finalisation. The true cause of the plaintiff's loss was the default by Growthcorp and not any actionable breach by the first defendant; thus, causation was not established and the claim failed.

Jurisdiction
Australia
Judgment Date
25 May 2005
Procedural Posture
Civil / Final Judgment After Hearing
Outcome
Verdict and judgment for first defendant. Claim against third and fourth defendants dismissed. Plaintiff to pay first defendant's costs.
Legal Topics
["solicitors' Duty of Care" 'causation' 'misleading or Deceptive Conduct' 'mortgage Transactions']
['professional Negligence' 'contract Law'] ["solicitors' Duty of Care" 'causation' 'misleading or Deceptive Conduct' 'mortgage Transactions']

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

Civil / Final Judgment After Hearing

Legal Issues

  1. 1 ['Did the first defendant breach his duty of care as a solicitor to the plaintiff?' 'Was the conduct of the first defendant misleading or deceptive under s 52 of the Trade Practices Act 1974 (Cth)?' "Did any breach by the first defendant cause the plaintiff's loss?" "Was the Declaration By Borrower false in a manner relevant to the transaction's validity or mortgagee's protection?"]

Ratio Decidendi

Although the first defendant breached his duty by taking instructions from a third party and sending a false declaration, those breaches were remedied when the first defendant obtained the plaintiff's instructions and explained the mortgage in person before finalisation. The true cause of the plaintiff's loss was the default by Growthcorp and not any actionable breach by the first defendant; thus, causation was not established and the claim failed.

Court Disposition

Verdict and judgment for first defendant. Claim against third and fourth defendants dismissed. Plaintiff to pay first defendant's costs.

Orders

  • ['Direct the entry of a verdict and judgment for the first defendant.' 'Order the plaintiff to pay the costs of the first defendant.' 'Dismiss the claim against the third and fourth defendants.']