Morris v Trodden [2015] NSWSC 705

A husband and wife separated and retained a solicitor to transfer the interest in their matrimonial home from the husband as sole proprietor to themselves as joint tenants. The solicitor failed to register the transfer and on the ex-husband’s instructions, provided the certificate of title to the bank as security for an all monies loan to the husband and the bank’s mortgage was registered. After the bank’s mortgage was registered, the solicitor registered a caveat on behalf of the wife. The woman sued the solicitor for negligence and misleading and deceptive conduct in failing to register the transfer, failing to obtain her consent to the bank loan and mortgage and in advising that a caveat had been registered and he would continue to pursue registration of the wife’s interest, which he did not. The solicitor argued that the action was out of time, since the bank mortgage was registered more than six years ago but the wife claimed that it was not because the negligence continued up until the wife was informed by the solicitor of the mistake.

The Court noted that the wife had been double damaged, first by the solicitor’s failure to register the transfer and second in failing to disclose the bank loan and mortgage and that it was arguable that this damage continued up until the wife was informed by the solicitor in his advice to her of this and accordingly her claim was not out of time and should proceed to trial.

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