Justice Finally Comes to Client Who Received Negligent Professional Advice

Published 15 Jun 2015

Mr TV resides on a parcel of land which is attached to the National Parks and Wildlife with lake access upon the Central Coast. In or about 2004 to 2006, he received professiona legal advice from AW with words to the effect that he would be entitled to take ownership of land by way of possessory acquisition if he was to work an area of land for the better for a period of 7 years. Having received this legal advice, he proceeded to clear the bushland adjacent to his own and in his mind improved it so as to make it accessible for camping and access by scale troops to which he donated access on an annual basis for their activities.

Following a couple of years, the National Parks and Wildlife commenced legal action against TV for the destruction of the environment in the Land and Environment Court.

What the solicitor had failed to advise TV was that if he were to take possessory title of land which is owned by a legal entity, in this case the National Parks and Wildlife, he could be charged with trespass. But if he makes any alteration, he could be charged with destruction of environment and property. He could be sued for damages and be ordered to restore the land.

This is exactly what was ordered in the Land and Environment Court.

The legal advice that TV was provided was only half correct and the failure was the provision of legal advice as to the consequences of impeding upon another entity’s land.

As a consequence of following the legal advice, TV was ordered to make repatriation to the land.

It was evidently clear that the legal advice provided was negligent, however, the matters proceeded to hearing and advocate’s immunity was attached to the actions of AW.

Although interlocutory proceedings found that the solicitor's actions were grossly negligent, specific examples of negligence had to be identified. This was an extremely time consuming process for both the solicitors of Gerard Malouf and Partners as well as TV. This process of systematically analysing the already voluminous file resulted in affidavits of evidence in excess of 500 pages. It was only through the dedication of Gerard Malouf and Partners and our painstaking work to point out numerous instances of negligent advice so that it could be shown that the negligence was not simply isolated that a settlement of $350,000.00 was able to be achieved for the client. This amount allowed TV to bring himself out of the debts which this solicitor's advice pour upon him.

It should be noted that TV had already retired from being an architect and that his parcel of land which included his family home was the only real asset that he had to leave to his wife and his children as he has been diagnosed with stage four cancer.

Gerard Malouf and Partners Professional Negligence Compensation Lawyers are extremely pleased to bring about a very satisfactory result for TV before his cancer took hold of him.