Justice Brereton’s latest professional negligence decision: failure to warn punter of commercial improvidence

Update, 5 December 2007: Thank goodness.  Someone has read the case and done a little note for us all. Nigel Watson’s crew over at Tress Cox, in fact.  Here it is. It says, in part:

‘it was or ought to have been plain to the solicitor that the plaintiffs were putting their family home at risk in order to raise the funds for an investment in which they had unrealistic expectations which were objectively absurd and in practice involved an extremely high risk. It was insufficient for the solicitor to advise the plaintiff that they limited their retainer on advising on a proposed investment. The solicitor should not have requested that the plaintiffs seek and obtain legal and financial advice elsewhere in respect of this component of the transaction and yet still continued to act on and facilitate the loan transaction. It should have also been evident to the solicitor that the plaintiffs did not appreciate the importance of obtaining such advice and did not intend to get the relevant advice. The Judge stated “what was required was advice that firmly brought home the apparent improvidence of the proposed investment.”’

Original post: Justice Brereton has put out another long professional negligence decision in a solicitor’s liability case: Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153. Must say I haven’t read it, and I hesitate to make promises by adding “yet”. But it seems to be about the failure of a solicitor to warn her clients against going into a scam involving — no kidding — shopping trolleys. The solicitors had formerly acted for the scammer. Their job was to give the familiar independent advice on loan and mortgage documents. The clients were Lebanese immigrants and had poor English. This was one of those cases where an attempt to limit the solicitors’ obligations to warn against really improvident transactions did not work, probably because the whiff of a conflict of duties hung in the air.

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