CLA: proportionate liability – damage / damages

Mitchell Morgan Nominees Pty Ltd & Anor v Vella & Ors [2011] NSWCA 390

The mortgagee suffered loss as a consequence of a solicitor failing to draft a mortgage which would have allowed it to foreclose. The matter was complicated because fraudsters had used forged documentation to obtain the ‘secured’ loan, which was in excess of $1million. Giles JA, speaking for the Court distinguished the nature of damage and damages, the first being a requirement for concurrent wrongdoer under Part 4 of the Civil Liability Act 2002 (NSW).  In so doing, the damage was different because the loss caused by the fraudsters was economic, whereas the loss caused by the solicitor was in failing to draw up the mortgage.  The Court held the solicitor wholly liable.

I refer you to Part 2 of the CIVIL LIABILITY ACT 2003 (Qld)

Brisbane Barrister – David Cormack

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