David v David

[2009] NSWCA 8

NSW Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Solicitors
3. › Duty to clients
4. › Scope of retainer
5. › Retainer for refinancing mortgage documents
6. › Whether solicitor obliged to cease acting when becoming aware of destination of funds
7. › Whether conflict of interest arose when firm also acted for recipient of investment funds
1. Legal Practitioners
2. › Solicitors
3. › Duty to clients
4. › Fiduciary duty
5. › Conflict of interest
6. › Whether conflict arose where firm acted for both refinancing client and investment scheme operator
7. › Whether solicitor's advice to obtain independent advice discharged any duty
1. Torts
2. › Negligence
3. › Duty of care
4. › Solicitors
5. › Duty to third persons not clients of the solicitor
6. › Whether solicitor retained by investment company owed duty of care to investors who were not clients
7. › Whether duty to take steps contrary to interests of solicitor's client
1. Trade Practices and Consumer Law
2. › Misleading and deceptive conduct
3. › Fair Trading Act 1987 (NSW), s 42
4. › Solicitor distributing investment contracts under instructions of client
5. › Whether provision of investment contracts constituted misleading or deceptive conduct
6. › Whether representations made in investment contract

Quick Take

A solicitor retained only for a refinancing transaction is not obliged to cease acting upon learning that the funds will be invested in a scheme operated by another client of the firm, provided the solicitor advises the client to obtain independent legal and financial advice, and save for circumstances of assumption of duty or knowledge of fraud, a solicitor owes no duty of care to non-client third parties to act contrary to the client's interests.