Cassis and Anor. v Kalfus (No.2)

The appeal in *Cassis and Anor. v Kalfus (No.2)* concerned a dispute between Mr. Cassis and Mr. Kalfus, heard by the Court of Appeal of New South Wales. The primary judge had made certain orders, and Mr. Cassis appealed these decisions, particularly in relation to damages awarded for a breach of fiduciary duty.

The Court of Appeal was required to determine whether it was appropriate for the appellate court to decide issues that had not been fully determined by the primary judge, especially where those issues involved an assessment of credibility. Furthermore, the court had to consider the extent of Mr. Kalfus's liability for equitable compensation for loss caused by his breach of fiduciary duty, specifically where the loss arose from the realisation of a risk that Mr. Cassis had knowingly undertaken and which was not significantly affected by the breach.

The Court of Appeal found that it was appropriate to decide the outstanding issues, notwithstanding the involvement of credibility assessments, as the primary judge had not made a definitive finding on those matters. In relation to damages, the court reasoned that Mr. Kalfus was not liable for the entirety of the loss. Instead, his liability was to be apportioned, reflecting the fact that a significant portion of the loss was attributable to a risk that Mr. Cassis had knowingly accepted, independent of Mr. Kalfus's breach of fiduciary duty.

The appeal was allowed, and the orders of the primary judge concerning Mr. Cassis were set aside. In their place, the Court of Appeal entered a verdict and judgment for Mr. Cassis against Mr. Kalfus in the sum of $385,649.00. Mr. Kalfus was ordered to pay one-half of Mr. Cassis's costs for the proceedings referable to his claim, as well as the costs of the appeal, with a certificate under the Suitors Fund Act if applicable.