The alleged negligence of the solicitor

Against the solicitor it was alleged that any deficiencies in answers to requisitions that were provided to the plaintiff purchaser resulted from that negligence and that if the second defendant was to be found liable to the plaintiff for negligent misstatement then the amount of any judgment against him would constitute damages caused by the cross-defendant’s negligent breach of his retainer. The cross-defendant completed the answers to requisitions and delivered them to the plaintiff’s conveyancing solicitor on the afternoon before settlement. The cross-defendant contended that he exercised reasonable care in taking instructions and that the answers he supplied were a faithful reflection of those instructions. In response, the cross-defendant said that he asked the second defendant questions that, having regard to the cross defendant’s knowledge of the pipe and of Council’s claims under s 59A of the Local Government Act, should have elicited instructions about those matters.

The Court accepted that the solicitor asked general questions which were quite sufficient to discharge his professional duty of care to obtain adequate instructions from which to provide the purchaser’s solicitor with accurate responses to the requisitions. The erroneous and misleading responses that were in fact provided and which gave rise to the second defendant’s liability to the plaintiff came not from any want of care on the part of the solicitor but from the second defendant having withheld information that was within his knowledge and that was clearly called for by way of frank answers to the solicitor's enquiries.

Relevantly it was found that the evidence showed that the second defendant did not tell his solicitor of the existence of the pipe; of the claims Council had made in respect of it in 2001-2003; of the notices he had received, in December 2002 and February 2003, that Council intended to enter to repair and reline the pipe; or of a 2002 resolution under which Council proposed to acquire an easement over the existing drain and, at a later date, along the western boundary. The second defendant did not inform his solicitor of any advice he had received from counsel retained on his behalf in 2002-2003.

In the circumstances, the second defendant’s cross-claim against the solicitor was dismissed.

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