COMMON LAW — negligence — negligent misstatement by solicitor — misleading and deceptive conduct — breach of s 42 of the Fair Trading Act 1987 (NSW) — representations made concerning operation of an investment scheme and alleged safeguards in place for investors' funds — representations made by proponents of the investment scheme and their solicitor — absence of a disclaimer — defendant solicitor in making representations was not a mere conduit — continuing duty to inform the plaintiff prior to investment of funds in the scheme — failure to exercise reasonable care — failure by defendant solicitor to verify the accuracy of the representations — representations induced the plaintiff to make the investments — plaintiff's reliance on representations was reasonable — defendant solicitor owed a duty of care to the plaintiff — defendant solicitor drafted the investment contracts on behalf of both parties, provided services and, in securing investors' funds used for bridging finance to third parties, drafted and completed mortgages and caveats — defendant solicitor was available to answer plaintiff's questions in relation to the investments — professional negligence — implied retainer existed between the plaintiff and the defendant solicitor — breach of fiduciary duty — defence of contributory negligence not established — proportionate liability in accordance with Part 4 of the Civil Liability Act 2002 (NSW) — principles and approach in application of the statutory proportionate liability regime — causes of action in negligence, breach of s 42 of the Fair Trading Act 1987 (NSW) and breach of fiduciary duty predicated on and arising from failure of solicitor to take reasonable care — claim based thereon apportionable claim — assessment of respective degrees of responsibility of concurrent wrongdoers — apportionment of liability between concurrent wrongdoers — damages pursuant to s 1324(10) of the Corporations Act 2001 (Cth) only available where an injunction is actually sought
Case Details
Citation[2014] NSWSC 571
CourtNSWSC
JurisdictionNew South Wales
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