LAWYERS are striking out at the duty of care differences between themselves and settlement agents.
Law Society of WA president John Ley said, for many years, most settlements in WA had been carried out by settlement agents. However, a recent Federal Court case has shown a settlement agent owes a lower standard of care to its client than a solicitor.
Consequently, the rights an aggrieved consumer has against a conveyance professional who makes a mistake differ depending on whether the consumer used a lawyer or a settlement agent.
In the Federal Court case of Cusmano v Pinner and Others, Justice Carr held a client of a settlement agent was not entitled to the same standard of care from a settlement agent as from a lawyer.
In that case, a purchaser of business premises suffered loss when the uninsured premises burnt down.
The purchaser was not able to recover damages from the settlement agent who did not point out the prudence of insuring the premises.
Mr Ley said Justice Carr recognised that had a solicitor represented a purchaser, the solicitor would have had an implied duty of care to advise the purchaser to make sure the premises were adequately insured.
“It is ironic that in many instances solicitors charge the same, or less, for conveyancing than settlement agents, yet have a higher standard of care,” he said. “Solicitors, by law, must have professional indemnity insurance before they can carry on business.”
