Pablo was a young man who had suffered extensive injuries in a motor vehicle accident and was confined to a wheelchair. He had sued the driver of the car responsible for his accident and was awarded $3.2 million by way of damages. Pablo’s parents, Edvard and Frida, had no business experience, both having worked in cleaning jobs since arriving in Australia in 1989. Their English was competent for everyday needs but not adequate for complex matters. All three relied heavily on advice from Caveat, their solicitor, whom they asked to help them with investment advice.
Caveat suggested that they consult BNQ, a financial institution in suburban Sydney, which offered a service advising clients about investment opportunities and possible savings and investment plans. When the parents attended the first appointment they met Merlin, a young financial adviser who took all details of their circumstances and then proposed a range of investments, principally in property which could earn income plus a capital gain. He offered to organise flights for them to inspect the properties, which were in northern New South Wales. He said it was impossible to recommend properties within Sydney, as rental prospects were quite poor.
The parents were flown to a university town in northern New South Wales and shown several blocks of units which Merlin described as fully let to students during the year and to overseas visitors during the summer vacations. Merlin also offered to organise conveyancing services at low cost through the estate agents. Merlin suggested that it would be better not to discuss all details of the investment with Caveat as many solicitors were jealous of cut-price conveyancers who undercut their fees.
The parents decided to buy two units. The estate agents sent all documents to them in Sydney, and they and Pablo signed them. Several months later the family had not received any rents. Whenever they tried to contact Merlin at BNQ he was unavailable or did not return their calls. When the parents phoned the estate agents they said the flats were mostly untenanted as there had been a downturn in the number of overseas students at the university, and local students couldn’t afford to live off campus.
The family contacted BNQ but was told Merlin no longer worked there, and BNQ had no interest in them, particularly as Merlin was not authorised to be promoting investments in real estate.
Analyse this situation, advising the family of all reasonable legal arguments as to whether a duty of care was owed to them and if so by whom. Explain who might be held liable.