Baker v Sheridan (No 2) - [2005] NSWSC 121

CITATION:
Baker v Sheridan (No 2) [2005] NSWSC 121

HEARING DATE(S): 26/05/04-28/05/04,31/05/04,01/06/04-04/06/04,23/08/04-26/08/04,30/08/04,01/09/04-03/09/04,08/09/04-09/09/04,06/12/04-07/12/04,09/12/04-10/12/04

JUDGMENT DATE :

10 March 2005

JUDGMENT OF:
James J at 1

DECISION:
Verdict for the cross-defendants on the first cross-claim

CATCHWORDS:
CROSS-CLAIM - alleged breach of fiduciary duty - whether there was a non-disclosure of a material fact by a fiduciary within principles of Brickenden v London Loan & Savings Co [1934] 3 DLR 465 - alleged breach of common law duty of care - solicitor retained by all parties for purpose of having an informal transfer agreement put into legal effect

CASES CITED:
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1
Brickenden v London Loan & Savings Co [1934] 3 DLR 465
Commonwealth Bank of Australia v Smith (1991) 42 FCR 390
Maguire v Makaronis (1997) 188 CLR 449

PARTIES:
Dawn Marie BAKER v Paul SHERIDAN & Ors (No.2)

FILE NUMBER(S):
SC 20124/01

COUNSEL:
SC Campbell SC/CP Taylor - Plaintiff
G Curtin - 1st Defendants
TGR Parker - 2 Defendant

SOLICITORS:
Paul Stubbs Law Office
Colin Biggers & Paisley
Maurice Blackburn Cashman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Thursday 10 March 2005

20124/01 Dawn Marie BAKER v Paul SHERIDAN & Ors (2)

JUDGMENT

1 HIS HONOUR: In these proceedings I delivered a judgment on 24 February 2005 (“the principal judgment”) in which I determined the plaintiff’s claims against the three defendants. In the principal judgment I referred to, but did not determine, the cross-claims brought by the second defendant Stephen James Rigg against the first defendants the partners of a firm of solicitors including Mr Paul Sheridan (“the first cross-claim” or simply “the cross-claim”) and against the third defendant Trevor William Baker (“the second cross-claim”). In this judgment I will determine the first cross-claim. This judgment is to be read in conjunction with the principal judgment and I will not repeat in this judgment many matters set out in the principal judgment which are relevant to the first cross-claim Even though I am dealing with a cross-claim, it is convenient to continue referring (as I did in the principal judgment) to Mr Rigg as the second defendant and to the partners in the firm of solicitors as the first defendants.

2 In par 49 of the principal judgment I summarised the further amended cross-claim filed in May 2004 up to and including par 7. In this judgment I will set out in full the terms of pars 5, 6 and 7 of the further amended cross-claim.

“5. In or about May 1996, Dawn Baker, Rigg and the second cross-defendant (‘Trevor Baker’) informally agreed to adjust their respective rights and interests consequent upon the devolution of Ken Baker’s assets and liabilities upon Dawn Baker (‘the transfer agreement’) and in particular that:

(a) certain properties which had been owned by Ken Baker would be transferred to Rigg and Trevor Baker;

(b) Rigg would continue to operate, and assume sole liability for obligations of, the joint businesses;

(c)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Sheridan (No 2)

Details

AGLC: Baker v Sheridan (No 2) [2005] NSWSC 121
Case: [2005] NSWSC 121
Decision Date: 10 March 2005

CaseChat Overview and Summary

The case of Baker v Sheridan (No 2) involved a dispute between the parties, Baker and Sheridan, regarding a cross-claim for alleged breaches of fiduciary duty and common law duty of care. The case was heard in the Supreme Court of Western Australia. Baker alleged that Sheridan, who was a fiduciary, failed to disclose a material fact within the principles of Brickenden v London Loan & Savings Co [1934] 3 DLR 465. Sheridan was a solicitor who was retained by all parties to formalise an informal transfer agreement. Baker further alleged that Sheridan breached a common law duty of care in the performance of this role.

The legal issues before the court were whether Sheridan had a non-disclosure of a material fact and whether Sheridan breached a common law duty of care. The court considered whether Sheridan had failed to disclose relevant information that a fiduciary would ordinarily disclose in the circumstances. The court also assessed whether Sheridan had acted with the requisite standard of care in performing his role as a solicitor.

In delivering the judgment, the court found that Sheridan had not breached any fiduciary duty or common law duty of care. The court held that Sheridan had acted in good faith and with reasonable care in his role as a solicitor. The court found that Sheridan had not failed to disclose any material fact that a fiduciary would ordinarily disclose in the circumstances. The court also held that Sheridan had not acted negligently in his role as a solicitor and had met the requisite standard of care.

The court dismissed Baker's cross-claim in its entirety and made no orders for costs.

Orders