When quantifying damages for solicitor negligence in mortgage preparation, the correct counterfactual considers what the actual borrower did, not what a hypothetical genuine borrower would have done. The scope of liability under s 5D of the Civil Liability Act 2002 (NSW) extends to loss of interest at mortgage rates where the solicitor was aware of and drafted the loan terms. A defendant asserting failure to mitigate bears the evidentiary burden of pointing to evidence of unreasonable delay.
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