Brott v Maher (No 2)
[2004] VSCA 220
•8 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 8883 of 2001
| ISSAC BROTT & ORS | |
| Appellants | |
| v. | |
| PATRICIA MAHER & ORS (NO. 2) | Respondents |
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JUDGES: | EAMES, NETTLE and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 October 2004 | |
DATE OF JUDGMENT: | 8 December 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 220 | |
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Equity – Solicitors – Breach of fiduciary duty – Solicitor engaged by clients in financial difficulties – Purchaser for clients’ properties procured by solicitor – Purchaser agrees to pay solicitor substantial sum “for himself” – Clients’ consent obtained to payment – Continuing negotiations over purchase – Whether payment to solicitor conditioned upon settlement - Whether consent “fully informed”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr G. Uren, Q.C. with | Minter Ellison |
| For the Respondents | Mr J. Langmead, S.C. with Mr T. Di Lallo | Coadys |
| For the 1st, 2nd and 3rd Cross-Respondents | Mr J. Styring | Efron & Associates |
EAMES, J.A.:
I have had the advantage of reading in draft the judgment of Phillips, J.A., and for the reasons his Honour gives I agree that the appeal should be dismissed.
NETTLE, J.A.:
I also agree.
PHILLIPS, J.A.:
This is an appeal brought by Issac Brott, a solicitor, after trial in the Trial Division earlier this year of a proceeding brought against Millenium Markets Pty Ltd and three individuals (including the appellant) by seven plaintiffs who are now the respondents to this appeal. There was a cross-appeal by the respondents but that was discontinued by notice a few days ago, on 5 October 2004. The abandonment of the cross-appeal precipitated an application by the cross-respondents for costs on a more onerous basis than merely party and party[1] in reliance upon an offer of compromise served early in July 2003, but the Court determined that application at the conclusion of argument on the appeal and the cross appeal is of no further relevance.
[1]As to which see RSC Chapter I Rule 64.14(4).
The first respondent, Patricia Maher, and her two sons, the second and third respondents (“the Mahers”) together with the other four respondents, being companies controlled by the Mahers, owned certain properties (“the security properties”). These included land on which the Mahers had conducted a trash and treasure market ("the market land") and an apartment in Bourke Street, Melbourne ("the Bourke Street apartment"), to which, it seems, Mrs Maher was particularly attached. By April 1998 the Mahers were indebted to their bank, then the Bank of Melbourne Limited, in the sum of $6.35 million and, by the end of January 1999, although there had been negotiation, the Mahers were under considerable pressure from the bank to make repayment. On 28 January 1999 the Mahers retained the appellant to act for them to negotiate a solution to their problem and to effect such agreements and undertake such transactions as would enable them to raise the necessary funds to settle with the bank. For this the Mahers agreed to pay Brott the lump sum of $40,000.
On 11 February 1999, and after some extended negotiations in conference, the bank agreed to accept $5.8 million in full satisfaction of the debt and to grant further time. On 12 February, the bank also agreed to pay $5,000 towards Brott’s fees and on 17 February the Mahers signed a letter prepared by the bank, acknowledging their indebtedness and setting out the agreement reached.
Meanwhile, on 14 February 1999 Mr. Brott had introduced to the Mahers one Herszberg and his solicitor, Mr. Szental.[2] Brott introduced Herszberg as a potential purchaser of the security properties and in the result on 17 February, at a meeting at Brott’s office, a joint venture arrangement was drawn up. That went nowhere, for Mrs Maher tore up the writing in disagreement and declined to proceed. On 28 February, at another meeting at Brott’s office, a Memorandum of Agreement[3] in quite different terms was executed, providing for the Mahers to do all things necessary to effect the purchase by Herszberg of the four respondent companies and the transfer of their shares, and providing certain benefits in turn to the Mahers, including the transfer of the Bourke Street apartment to a company to be nominated by Mrs. Maher and the payment of $35,000 by Herszberg to Brott for the balance of the plaintiffs’ legal fees (i.e., over and above the $5,000 which the bank had earlier agreed to pay). On that day, too, Herszberg agreed to pay Brott $150,000 for himself, "by way of commission" as the judge put it.[4] This was dubbed "the Herszberg fee".
[2]By 1 March Mr Herszberg was acting also through Efron & Associates.
[3]AB D691-2.
[4]Judgment 27, 28.
On 1 March 1999 the Mahers executed a Deed of Settlement with the bank[5], in which they acknowledged their indebtedness to the bank in the sum of $6,348,758.88 and were required to enter into contracts for the sale of the security properties, or alternatively for the sale of the shares in the four Maher companies, for an aggregate price of not less than $5.8 million, the bank agreeing to accept $5.8 million in full satisfaction of the debt, if paid by 10 May 1999. Also on 1 March, the Mahers signed at the foot of a letter to Issac Brott & Co. from Herszberg’s solicitors (Efron & Associates) that described "the offers" from Herszberg to purchase the security properties[6], thereby signifying their "consent to the terms" set forth. Further, they executed what was called a "Deed of Agreement"[7] in which they consented, first, to the payment by Herszberg to Brott of $35,000 on their behalf for their legal costs and, secondly, to the payment by Herszberg to Brott "in his own right" of the sum of $150,000 which was said to be "for procuring the sale".[8]
[5]AB D709ff.
[6]AB D732-3.
[7]AB D743-5. The named parties were Brott, the Mahers and Herszberg.
[8]Judgment 29, 30, 31.
One might have thought that would have been the end of the negotiations, but it was not. Further negotiations followed, in which another man, one Gordon, was involved at the instance of Herszberg and the deal was again rearranged. Formal contracts of sale of the security properties to companies of Herszberg and/or Gordon were signed on 16 March 1999 and deposits paid, with a collateral agreement providing for the Mahers a right to cancel the sale of the Bourke Street apartment in the event that certain uses of the market land were lawful (a matter over which the parties were in dispute for some time thereafter, even at trial) plus, if the sale was not cancelled, a limited option to buy the apartment back.
On 9 July 1999 the contracts of sale were settled; the bank was paid $5.8 million by the purchasers and Brott was paid $40,000 for legal costs and a further sum of $75,000 by way of part-payment of the Herszberg fee, Brott having earlier received a payment of $20,000 on account.[9] Though not presently relevant, differences soon emerged between the parties over the Mahers' rights in relation to the Bourke Street apartment and ultimately Brott's retainer was terminated in February 2001.[10]
[9]Judgment 36.
[10]Judgment 37-42.
At trial a great number of issues were raised and debated and a great deal of evidence led, the trial occupying many days in March and April earlier this year. By and large the respondents failed in their various claims, but they succeeded in one, the claim that in personally receiving $150,000 from Herszberg by way of commission, Mr. Brott had acted in breach of the fiduciary duty he owed to them as his clients and was accountable accordingly. The trial judge delivered careful and comprehensive reasons for judgment on 20 May last[11], dealing with all of the issues raised at trial, but the appeal is concerned only with the Herszberg fee. On 1 June judgment was given, dismissing all of the respondents' claims save one and, as to that, giving judgment for the respondents against the appellant in the sum of $150,000 together with interest of $42,290, and costs. According to the appellant, that was error, counsel contending on appeal, as at trial, that in all of the circumstances Mr. Brott did not act in breach of the fiduciary duty he owed his clients and accordingly was not accountable for the $150,000 paid to him. (An appeal against the award of interest was not pursued in argument.)
[11]Maher & Ors. v. Millenium Markets & Ors [2004] VSC 174.
Of course it was not in dispute that the appellant was in the position of a fiduciary vis a vis his clients, the respondents: he was their solicitor, albeit that he was engaged to act in relation to what was a commercial transaction as much as a legal one. Nor was the general principle in dispute, the trial judge taking as a start this statement from Meagher, Gummow and Lehane, Equity Doctrine and Remedies[12]:-
“The classic case of the [fiduciary] duty arising is where a solicitor acts for a client in a matter in which he has a personal interest.
In such a case there is an obligation on the solicitor to disclose his interest and, if he fails to do so, the transaction, however favourable it may be to the client, may be set aside at his instance.”
To this his Honour added references to Spellson v. George[13], Maguire v. Makaronis[14] and Beach Petroleum NL v. Kennedy[15].
[12](4th ed.) at [5-115].
[13](1992) 1 N.S.W.L.R. 666 at 674.
[14](1997) 188 C.L.R. 449, especially at 464 (where their Honours referred to the opinion of the Privy Council in Clark Boyce v. Mouat [1994] 1 A.C. 428 at 437) and at 466.
[15](1999) 48 N.S.W.L.R. 1 at [196]-[202].
To the allegation of breach, Mr. Brott’s answer was that he had made full disclosure to the clients and they had given their informed consent to his receiving the Herszberg fee for himself. The trial judge rejected the submission, holding that though the clients had consented to the receipt of the fee - and so much was plain beyond argument from the documents they signed - the onus was on Brott to establish that their consent had been fully informed and the onus had not been discharged. His Honour specifically rejected the evidence given by Mr. Brott that he had advised the Mahers to obtain independent legal advice and rejected, too, Brott's evidence that, in the presence of the Mahers, he had had some discussion with the Law Institute about his accepting the Herszberg fee, “alerting the clients to the need for, or desirability of, independent advice”.[16] These were matters of evidence dependent upon the credibility of the witnesses and there is no basis now for challenging his Honour’s conclusions with respect thereto.
[16]Judgment 79.
That is not to say that therefore the appellant had to fail. Quite apart from any question of the clients' seeking independent legal advice or any discussion with the Law Institute about the propriety of Brott's accepting the Herszberg fee, the basal question remained whether the clients' consent to Brott's accepting the fee of $150,000 from the proposed purchaser of the security properties was fully informed. The judge accepted that "the Mahers were experienced in both business and litigation at the time they executed the fee agreement"[17] (that is, the Deed of Agreement of 1 March 1999), and that is a significant circumstance; for that document dealt almost exclusively, and in some detail, with the payment by Herszberg both of the balance of the respondents' legal fees of $35,000 and of the procurement fee, or commission, of $150,000. Clause 9 put beyond argument the consent of the Mahers to Brott's receiving the fee of $150,000 from Herszberg for his own use and benefit, but was that consent fully informed?
[17]Judgment 85.
Essentially what must be shown in order to establish that the client's consent was fully informed is described in the following passage from Clark Boyce v. Mouat[18] (which was quoted by the trial judge in his reasons for judgment[19]):-
"If a person occupying a fiduciary position wishes to enter into a transaction which would otherwise amount to a breach of duty, he must, if he is to avoid liability, make full disclosure to the person to whom the duty is owed of all relevant facts known to the fiduciary, and that person must consent to the fiduciary’s proposal.”
[18][1994] A.C. 428 at 437.
[19]Judgment 71.
In concluding that the Mahers' consent to payment of the Herszberg fee was not fully informed the learned trial judge was influenced by the possibility of future conflict. His Honour said[20]:-
"In my view the potential for problems of conflict of interest was significant. The agreement which was entered into with Herszberg on 17 February 1999 was on any view a preliminary agreement. It required finalisation by further documentation. There was a potential conflict of interest as to the precise terms of such finalisation. Moreover this agreement was torn up by Patricia Maher and a further preliminary agreement was entered into on 28 February 1999. As at 1 March 1999, being the date on which the deed was executed relating to the payment of $150,000 by Herszberg, it must have been apparent to Brott that there was potential for future conflict between the Mahers and Herszberg regarding the detailed resolution of the final documentation necessary to give effect to the preliminary agreement of 28 February.
Further it must have been apparent to Brott that there might be conflict as to the performance of such agreements.”
[20]Judgment 80, 81.
His Honour considered it determinative that the potential for future conflict had not been explained by Brott to his clients (or more accurately that there was no evidence that it had) and, although appellant's counsel was disposed to submit that that put the bar too high, there is, I think, an antecedent reason for agreeing in his Honour's conclusion that the appellant had not discharged the onus on him of proving that the Mahers' consent was fully informed. The trial judge was critical of the oral evidence given by the Mahers, disbelieving much of it, and he was critical too of some of the evidence given by Mr. Brott, describing him as at times “a most evasive witness”.[21] In the end his Honour was not prepared to place reliance upon the evidence of Justice Maher or Patricia Maher or indeed of Mr. Brott, “to determine significant matters unless that evidence is materially confirmed or corroborated in some way by documentary or other circumstantial evidence”.[22] It is convenient therefore to focus on the documents, and in particular the documents that were signed on 1 March.
[21]Judgment 62.
[22]Judgment 63.
As already stated, there were three documents signed by the Mahers that day: namely, the Deed of Settlement with the bank, the letter from Efron & Associates which confirmed Herszberg's offer to purchase the security properties[23] and the so-called Deed of Agreement concerning the Herszberg fee. Yet there was another letter, too, of 1 March from Efron & Associates[24] (and again addressed to Issac Brott & Co.) which not only set out the arrangement between the parties over the security properties in much greater detail than did the letter counter-signed by the Mahers, but also dealt with payment of the $35,000 for the Mahers' legal fees and payment of the Herszberg fee. Although provision was made for their signatures at the foot, this second letter (as copied for the trial) does not appear to have been countersigned by the Mahers.
[23]An "unconditional purchase" as it was described by Mr. Brott to the bank in another letter of 1 March, AB D747.
[24]AB D740.
What is important for present purposes is that that second letter expressly provided that payment of the Herszberg fee (which it described as "an introduction fee") was conditional - conditional, that is, upon settlement of the purchase of the security properties. The letter ("the unsigned letter"[25]) read in part:
[25]Unsigned, that is, by the Mahers.
"We are instructed that Maher’s legal fees of $40,000, of which the Bank is contributing $5,000, leaving a balance of $35,000 shall be paid at the irrevocable direction of Maher from the proceeds of sale of the first freehold assets excluding the Bourke Street and Bundoora properties realised by our client.
We are instructed that our client has agreed to pay an introduction fee to Issac Brott & Co in the sum of $150,000 payable as follows:
(i) $20,000 paid;
(ii) $55,000 at settlement, and
(iii) $10,000 per month thereafter.
The introduction fee is payable conditional upon:
(i)completion of the settlement of the acquisition of Maher’s properties and assets as set out in the accompanying letter dated 1st March 1999 and being the acquisition of the Maher assets for $5.8 million of [sic] all usual adjustments, such properties to be free of all, mortgage debentures and other securities and free of any lease or licence (except for the lease of the service station, the lease of the fruit market, and stall licences to individual market traders).
(ii)Maher executing the Bundoora All Weather Market Pty Ltd and Westpac Deed of Settlement as drafted by Dunhill Madden Butler.”
In contrast, the Deed of Agreement, which was signed by the Mahers, made no reference at all to any condition attaching to payment of the Herszberg fee. First, the deed provided by way of recital:
“C.In February, 1999 the Mahers retained Brott to act for them and the Maher group in relation to a claim by Westpac Banking Corporation for payment of more than $6,000,000 (‘the services’).
D.By letter dated 4 February, 1999 from Brott to Patricia and Justice Maher and signed by them, Patricia and Justice Maher agreed to pay to Brott $40,000 as legal costs for the services (‘the legal costs’).
E.Brott agreed to provide the services on condition that, in addition to the legal costs payable by the Mahers, he would be entitled to receive and retain a fee from the purchaser of any property sold in relation to the claim.
F. [not relevant]
G.In furtherance of the Bank settlement, Brott negotiated for the sale of properties to Herszberg or nominee (‘the sale’).
H.By an undated memorandum of agreement which was executed by the parties to it on 28 February, 1999 (‘the memorandum of agreement’) Herszberg agreed, inter alia, to pay $35,000 to Brott as part payment of the legal costs.
I.Herszberg has, with the Mahers knowledge and consent, agreed to pay $150,000 to Brott for procuring the sale (‘the Herszberg fee’).
J.Herszberg has paid $20,000 to Brott as part payment of the Herszberg fee.
K.Brott has not, does not and will not act as legal practitioner for Herszberg in relation to the sale.”
The body of the deed then commenced thus:-
“1.The Mahers jointly and severally agree to pay the legal costs of $40,000 to Brott.
2. The legal costs shall be paid as follows:
a)$5,000 upon settlement of the sale in accordance with the Westpac Banking Corporation letter of 12 February, 1999
b)$35,000 upon Herszberg selling any of the properties included in the sale or on 1 January, 2000, whichever occurs earlier.
3.Herszberg agrees to pay the balance of the Herszberg fee, namely $130,000 to Brott.
4. The balance of the Herszberg fee shall be paid as follows:
a) $10,000 on or before 4 March, 1999
b) $45,000 on or before 10 May, 1999
c)$60,000 by six monthly instalments of $10,000 per month commencing on 10 June, 1999
d) $15,000 on or before 10 December, 1999
5.Herszberg covenants with the Mahers to make the payment described in clause 2(b). This covenant shall not derogate from the Mahers agreement with Brott to make that payment.”
Mr. Herszberg, who did not give evidence at the trial, never signed this Deed of Agreement, or at all events there is no evidence that he did, and perhaps (I speculate) that was because it did not square with the unsigned letter of 1 March from Efron & Associates. In clause 4 the deed makes no mention of any condition attaching to payment of the Herszberg fee; instead payment is according to date without qualification. There is no suggestion that payment is conditional upon settlement, unlike payment of the legal fees. For all that the reader can tell, payment of the Herszberg fee was unconditionally agreed and for services already rendered. In the absence of evidence that the Mahers saw the unsigned letter, it follows, I think, that at least one important fact was not disclosed to the Mahers when their consent was sought and obtained by Brott: namely that payment of the Herszberg fee was largely, if not wholly, conditional upon subsequent settlement of the sale of the security properties. That is significant because it is the context in which the judge saw the potential for future conflict between the appellant's duty to the Mahers and his interest in receiving the Herszberg fee.
One answer to this would be (if it were the fact) that payment of the Herszberg fee was in truth not conditional, which to my mind is how the Deed of Agreement reads. But the unsigned letter was in evidence and it is difficult to dismiss it as altogether irrelevant; moreover, to describe the fee as an "introduction fee" or as a fee "for procuring the sale" suggests that Brott and Herszberg were looking forward to completion. Moreover, as the appellant put it at the outset in his witness statement, Herszberg "volunteered to [pay] me the sum of $150,000 upon completion of the deal" and the appellant claimed that he had so described it to the clients, the Mahers.[26] Importantly, in paragraph 7 of the appellant's own Outline of Argument on appeal the appellant contends expressly that as agreed on 1 March payment of the Herszberg fee was unconditional, thereby denying (it was argued) the potential for future conflict seen by the Judge. Paragraph 7 is now significant only because, when asked about it during argument, appellant's counsel disavowed reliance upon it, choosing to take instead the position that payment of the Herszberg fee had been conditional.
[26]Judgment 65, and see and compare the cross examination rehearsed at judgment 105.
Building upon that, counsel went so far as to contend that, being conditioned upon settlement, the Herszberg fee was no different in kind from any other contingency fee which was payable to an agent, usually by his own principal, and conditioned upon the success of the venture which the agent had undertaken for the principal. On its face, he said, such a contingency fee might be thought an inducement to the agent to prefer his own self-interest in achieving a result (and so winning the fee) to his duty to advance his principal's best interests should conflict arise: yet obviously, said Mr. Uren, that was not the view generally taken, for contingency fees were not uncommon. And if such fees were acceptable when payable by the principal to the agent, what was the difference (he asked rhetorically) when a like contingency fee was payable by the other party to the transaction who was surely just as interested as the agent's own principal in concluding the deal and seeing it settled?
The answer, of course, depends upon the circumstances, but ordinarily a fee payable otherwise than by the agent's own principal must stand in different case. No doubt the contingency fee payable by the agent's principal is seen as a real inducement to the agent to look after the principal's interests until a successful outcome has been achieved and even to hurry matters along to that end; but then there is only one relevant interest in that outcome, and more particularly in the detail of that outcome. Payment of a contingency fee by the other party to the main transaction is not only a strong incentive to the payee to continue dealing with that person as distinct from any other[27]; it also introduces a new consideration, the interest of that other party, however indirectly that interest becomes relevant. While it can be said readily enough that both parties to the main transaction have a like interest in seeing a deal concluded and the matter settled, their interests diverge when the detail is under consideration. What should be the price to be paid by the one to the other and how should it be payable; should this particular term or that be included? The answer to such questions commonly varies according to one's view point.
[27]Compare the judge's rejection of this as the motive behind the payment of the Herszberg fee: judgment 103.
And so it was here. When payment of the Herszberg fee was agreed on 1 March and made conditional upon settlement of the deal which was then in contemplation, the terms of the deal had yet to be finalised and that provided ample scope for conflict between the vendors and the purchasers, as witness the negotiations that followed and the significant disputes that arose even after settlement about the permitted uses of the market land, the rights of the vendors in respect of the Bourke Street apartment and the possible enforcement of those rights. That the vendors' solicitor was to receive from Herszberg a commission or fee conditioned upon success introduced a conflict between the appellant's interest and duty in the relevant sense which was not to be denied simply by characterising the Herszberg fee as a contingency fee like any other payable to an agent by the agent's own principal; and the fact that payment of the Herszberg fee was indeed conditioned upon success was important, it seems to me, to the nature and extent of any potential conflict.
Mr. Uren then contended that the conditional nature of the payment had in fact been communicated to the Mahers. I have said already that the judge was not prepared to accept the oral evidence of either the Mahers or the appellant unless corroborated and so counsel relied upon the unsigned letter of 1 March and the evidence of Justice Maher with regard to it during cross examination. Justice Maher was asked if he had seen the letter and he said that he thought he had; indeed he was definite that he had signed it. But not only was he alone in so saying, there was no explanation of where the signed copy was (if such existed) and there was other reason too to suppose that the witness's recollection was at fault. I refer to the fact that the unsigned letter of 1 March was in terms very like another document, namely the Heads of Agreement dated 28 February 1999, which was signed and presumably on 28 February or 1 March. It was signed by Justice Maher and his mother and also by Herszberg and it describes the purchase of the security properties in almost precisely the same terms as does the unsigned letter of 1 March. The difference is that the Heads of Agreement make no reference to payment of the legal fees or the Herszberg fee while the unsigned letter deals with both in detail, and apparently exhaustively. In the circumstances, one could not be satisfied that Justice Maher's recollection of seeing the unsigned letter is reliable, particularly as the other members of the family (as I apprehend it) made no such claim.
Moreover, it is not at all improbable that no reference was made on 1 March to the conditional nature of the Herszberg fee. As matters stood, negotiations appeared to be over, the terms of the deal settled. The bank was told by Brott in writing on 1 March that the purchase of the security properties as described in the letter to the bank of 1 March was unconditional (however incomplete that description now seems when compared with the Heads of Agreement of 28 February and the unsigned letter of 1 March); and if it seemed so at the time that may have been reason for not expressly describing payment of the Herszberg fee, as agreed on 1 March, as conditional. Be that as it may, the Deed of Agreement which was drawn by counsel and executed specifically for the purpose of signifying the consent of the Mahers to their solicitor's receipt of the Herszberg fee does not describe the payment as conditional and that seems to me determinative on the state of the evidence as a whole. Certainly one could not be satisfied that the onus had been discharged of establishing that the Mahers were told that payment was conditional.
Indeed one might go further because, so far as I can tell, the reason for payment of the Herszberg fee was not disclosed either. Even now, I am not clear myself what that reason was. As mentioned above, the unsigned letter of 1 March calls it "an introduction fee" and the Deed of Agreement, in Recital I describes it as payable "for procuring the sale". Recital K asserts that the appellant "has not, does not, and will not act as legal practitioner for Herszberg in relation to the sale" and Mr. Uren told us that Mr. Brott had not acted for Mr. Herszberg at all. Why then did the latter agree to pay anything to the appellant? For what was the fee a reward if, as asserted, Mr. Brott never acted for Mr. Herszberg in any capacity. At one stage during oral argument Mr. Uren called the payment "a success fee" and, although he gave no particulars, that seems to me quite likely. But if correct, it implies some conduct by the appellant at the request of Mr. Herszberg and, if that was the case, that too was not communicated to the Mahers - or at all events there is no evidence that it was.
For one reason or another, then, it can be concluded that the Mahers were not shown by the appellant to have been given all of the facts bearing upon payment of the Herszberg fee. It will be apparent from the foregoing that I agree, with respect, in the trial judge's conclusion that there was a potential for future conflict arising from the appellant's agreement with Herszberg for payment of the Herszberg fee and further that the appellant failed to establish that the consent he obtained from the Mahers to his receiving that fee was fully informed, wanting persuasion that the nature and extent of the potential conflict had first been explained by the appellant to his clients. As I have indicated, there may even be reason for supposing that on 1 March the appellant anticipated no further conflict between the parties, but if so that anticipation was not borne out; and if, as is now said, payment of the fee was in truth conditional as described in the unsigned letter of 1 March, the anticipation must have been no more than a hope.
At one stage in the argument Mr. Uren sought to distinguish cases dealing with conflict of duties from those dealing with conflict between duty and interest. The present, he said was the latter and not the former and hence it was not a case of divided loyalty. It was always possible, he said, to avoid a dereliction of duty when the only competition came from one’s own self-interest, but it might not be possible to avoid a dereliction of duty where two duties came into conflict. The latter, he submitted, was properly called “divided loyalty”, the former not. I must say that this seems to me a somewhat precious distinction and it was not one that appealed to the High Court in Maguire where their Honours[28] described a case of conflicting duty and personal interest as one of divided loyalty. In my view, the conflict of duty with interest is plainly proscribed in equity, just as is the conflict of duty and duty. In both, there is a breach of fiduciary duty which can be met only by showing fully informed consent which supposes that all relevant facts have been communicated and the conflict or potential conflict explained.
[28]At 465.
Finally, Mr. Uren submitted that his Honour had fallen into error in requiring any more explanation of the appellant to the clients than that the Herszberg fee was to be received. He argued that receipt of the fee was significant only to the extent that it would have induced a dereliction of the solicitor’s duty to his clients, and it was absurd (as he put it) to suggest that a mere "contingency fee" could have such an effect. He came close to submitting that receipt of the fee was significant only if it would have led to dishonesty. That is surely not so. As I apprehend it, the concern of equity is to ensure that one who is in the position of a fiduciary is not put in the position where his or her judgment might be distorted by personal interest (or in other cases conflicting duty). It is not that personal interest may lead to dishonesty: it is that judgment might become warped, wrong decisions taken, or misleading views adopted simply because of personal interest. As it was put by the High Court in Warman International Ltd. v. Dwyer[29] (an authority to which the respondents referred us), equity is concerned "to preclude the fiduciary from being swayed by considerations of personal interest and from accordingly misusing the fiduciary position for personal advantage". It is no more than that but equally it is no less. Where there is the potential for future conflict, as the judge observed, the law is strict. That is what a solicitor in Mr. Brott's position should tell his clients, that the law is strict and because it is he is at pains to see that they are fully informed and if necessary independently advised about the potential for conflict before they consent to whatever gives it rise. That was not shown to have occurred here.
[29](1995) 182 C.L.R. 544 at 557-8.
It should be noted in conclusion that the appellant’s own evidence was directed to establishing that he had told the Mahers to seek independent legal advice and had been concerned to take the opinion of the Law Institute. Apparently the appellant, whether in hindsight or at the time, saw the need for fully informed consent in the position which had arisen and I reject the submission that this was not a case of significant conflict, or potential conflict. In my opinion, his Honour did not err in finding that this was a case of breach of duty in which the appellant had fallen short of establishing that the consent, so obviously given by the clients to the receipt of the Herszberg fee, had been fully informed.
For these reasons I would dismiss the appeal.
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