Gellert v Bellamy

[1999] NSWCA 123

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Negligence
3. › Professional negligence
4. › Solicitors
5. › Solicitor acting for multiple parties to loan transaction
6. › Duty to advise nominal borrower separately from real borrower
7. › Whether duty to ensure client advised independently of party with potential for improper influence
1. Tort Law
2. › Negligence
3. › Professional negligence
4. › Solicitors
5. › Scope of solicitor's duty
6. › Whether duty extends beyond matters required by instructions
7. › Whether duty to advise on risk of improvident transaction or to ensure independent advice obtained
1. Tort Law
2. › Negligence
3. › Causation
4. › Hypothetical conduct of plaintiff if properly advised
5. › Whether finding that plaintiff would not have proceeded was open on the evidence
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Whether finding open on the evidence
5. › No error shown in reasons of trial judge

Quick Take

A solicitor acting for all parties to a loan transaction where a family member mortgages property for the benefit of another family member must advise the mortgagor to obtain advice separately from the beneficiary of the loan, or insist on independent advice, to guard against potential improper influence. This duty arises even if the solicitor is not retained to give financial or commercial advice, and even if merely acting for all parties is not itself negligent. The distinction between financial/commercial advice and other advice required of a solicitor is not a clear one.