(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments between them in the event of separation. Pursuant to one of the statutory requirements, the defendant, who was W’s solicitor, certified that, prior to her signing the agreement, he had explained its effect to her. Following separation a judge found that he had not explained its effect to her and held that the agreement was void. The agreement settling their ancillary affairs was found to be invalid after the wife’s solicitors had failed properly to explain its effect to her. The husband sued her solicitor in negligence. The solicitor applied to have the claim struck out on the basis that he owed no duty of care to the husband in advising the wife. He did not succeed before the High Court and appealed.
Held: The husband had an arguable claim against the solicitor, so that the application to strike out was properly declined. The solicitor had in effect stepped outside his role as his client’s solicitor and accepted with the act of certification a direct responsibility to the other party to the agreement. Once a solicitor has assumed the obligation under the New Zealand statute to certify its requirements have been met, he or she has ‘undertaken a duty which is ‘separate and different’ from their professional duty to their client and one which they must contemplate will be relied upon by the other party to the agreement.’
Thomas J explained that the claimant had relied, and had been expected by the defendant to rely, on the certificate as a feature of the validity of the agreement and that there had been the necessary assumption of responsibility towards him on the part of the defendant.
Thomas J
[1993] 2 NZLR 257
England and Wales
Cited by:
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Professional Negligence
Updated: 22 January 2022; Ref: scu.424849