Provident Capital v Papa [2013] NSWCA 156

The borrower lost her Contracts Review Act claim against the lender and the lender was awarded possession of her property. However, the borrower was successful in seeking damages for negligence from the solicitor who provided her with independent legal advice about the loan contract. The court had held that the solicitor had failed to draw the borrower’s attention to the risks involved in her transactions with the lender and to recommend she obtain independent financial advice.

The borrower now asked Judges (on appeal) to make orders that the solicitor pay her the legal costs that she had to pay to the lender after losing her Contracts Review Act claim on appeal.

The Judges agreed that the borrower could recover the costs she had to pay Provident from the solicitor, because:

  • The costs that she had incurred could fairly and reasonably be considered to have arisen naturally from the solicitor’s breach of contract.
  • The solicitor strongly supported the Contracts Review Act claim at the hearing through substantial cross-examination of the principal Provident witness and by submissions at the conclusion of the hearing.
  • The borrower’s bringing of the Contracts Review Act claim was a reasonable step taken by the borrower to mitigate her loss.

The solicitor argued that borrower was contributory negligent because she:

Agreed to mortgage her property without making any inquiry as to the amount secured against it, the repayments, and the ability of her son or his company to make the repayments.

The Judges refused to send the case back to the original Judge to decide the issues of contributory negligence. This was because the solicitor had not raised those issues on the appeal, and he could not raise them now that the appeal had already been determined.

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