Cooper v Winter

[2013] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cooper v Winter [2013] NSWCA 261

Hearing dates:

22 March 2013

Decision date:

13 August 2013

Before:

McColl JA at [1]
Barrett JA at [2]
Ward JA at [3]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - solicitors' duties to clients and former clients - whether primary judge erred in holding that no solicitor/client retainer and no duty of care or fiduciary duties owed to appellant in relation to transaction in question - whether primary judge erred in holding no breach of duty of care or fiduciary duties and no loss caused as a result of conduct in question

Cases Cited:

Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367
Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
Cooper v Winter [2012] NSWSC 161
Davie v Lord Provost Magistrates and Councillors of the City of Edinburgh (1953) SC 34
Easter v Griffith (Supreme Court of New South Wales, Santow J, 17 June 1993, unreported)
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Holborow v Rudder [2002] WASC 265
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McCrohon v Harith [2010] NSWCA 67
Mifsud v Campbell (1991) 21 NSWLR 725
The Ophelia [1916] 2 AC 206
Watkins T/as Watkins Tapsell v De Varda [2003] NSWCA 242

Category:

Principal judgment

Parties:

Peter Joseph Cooper (Appellant)
Ronald William Winter (First Respondent)
Neill Stewart Williamson (Second Respondent)
Anthony Orazio Brieschetto (Third Respondent)

Representation:

Counsel:
T J Boyd with J D Cairn (Appellant)
G Curtin SC (Respondents)
Solicitors:
Herbert Weller (Appellant)
Coliln Biggers & Paisley (Respondents)

File Number(s):

CA 12/104578

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2012] NSWSC 161

Date of Decision:

2012-03-07 00:00:00

Before:

Adamson J

File Number(s):

SC 07/265248

Judgment

1. McCOLL JA: I agree with Ward JA's reasons and the orders her Honour proposes.

1. BARRETT JA: I have had the advantage of reading in draft the comprehensive judgment prepared by Ward JA. I am of the opinion that, for the reasons her Honour states, the appeal should be dismissed with costs.

1. WARD JA: This is an appeal from the dismissal by Adamson J of claims brought in the Common Law Division by Mr Peter Cooper against the partners of a firm of solicitors for alleged breaches of duty of care and fiduciary duty arising out of the conduct of one of the partners of that firm, Mr Ronald Winter. For ease of reference, below is an index to these reasons.

INDEX

Background

[4]

Mr Cooper's claims

[8]

Findings at first instance

[17]

Appeal Grounds

[22]

Alleged retainer/duty of care

Grounds 1-2 - alleged failure adequately to consider the evidence as to whether there was a retainer which applied to the Bells Line of Road property; finding that there was no such retainer

[25]

January 2002 conversation

[30]

June 2002 conversation

[32]

"Objective circumstances"

[36]

19 September 2003 letter

[40]

October 1997 agreement

[45]

2002/2004 documents

[48]

Conclusion as to the complaint as to the failure to have regard to the "further objective circumstances"

[68]

"Apparent logic of events"

[71]

Course of conduct

[80]

Ground 3 - finding that, in the absence of the alleged retainer, there was no duty of care in respect of the Bells Line of Road property

[86]

Fiduciary Duty

Ground 4 - failure to find that there was a fiduciary obligation owed by the respondents to Mr Cooper in respect of the Bells Line of Road property

[92]

Findings in relation to Blamathon shares

Ground 5 - finding that Mrs Lockrey was the beneficial owner in the shares in Blamathon

Ground 6 - finding (at [65]) that Mrs Lockrey's instructions that she held her shares in Blamathon on trust for him and Mrs Cooper were incorrectly recorded by Mr Winter in the letter dated 19 September 2003

[103]

Ground 7 - finding (at [95]) that it would be inconceivable that Mr Cooper would have placed trust in Mrs Lockrey to hold her Blamathon shares in trust for him

[116]

Finding as to the capacity in which instructions were given by Mr Cooper

Ground 8 - finding (at [5]) that Mr Cooper only gave Mr Winter instructions as a director or employee of Blamathon (other than for the matters outlined at [3])

[120]

Alleged breaches of duty/causation/loss

Ground 9 - failing to find on the evidence that the respondents breached the alleged duties of care and fiduciary duty owed to Mr Cooper

Ground 10 - finding that if there had been any breach by the respondents, such breach had not caused any damage to him

Breaches of Duty

[124]

Causation

[137]

Loss

[143]

Ground 11 - failing adequately to consider the evidence and arguments bearing upon the issues of retainer, duty of care, fiduciary duty, breach of duty, causation and damage, and to give adequate reasons for decision on those issues

[153]

Conclusion

[157]

Background

1. The factual background to the dispute is set out in the primary judge's reasons (Cooper v Winter [2012] NSWSC 161). Briefly, in the early 1990's, Mr Cooper, who is a builder, and his then wife, Mrs Kim Cooper, were together involved in the development of a property that they owned at Ross Street, North Windsor. They had financial difficulties arising out of tax liabilities in relation to the development. In 1997, before the completion of the development, they sold the Ross Street property to Blamathon Pty Ltd, a company owned and controlled by Mrs Cooper's mother, Mrs Kath Lockrey. Neither Mrs Lockrey nor Blamathon was a party to the proceedings.

1. In August 1999, Mr and Mrs Cooper went into voluntary bankruptcy. Mr Cooper continued to work in relation to the Ross Street development but did so, from the time of his bankruptcy, for Blamathon. Towards the end of his bankruptcy, Mr Cooper identified another property for sale that he considered suitable for development - the Bells Line of Road property. That property was acquired by Blamathon in 2002. Although the subject of a development approval in September 2003, the Bells Line of Road property was not developed by Blamathon. It was sold in 2004.

1. During the period from at least 2002, Mr and Mrs Cooper had marital difficulties, leading to their separation in late 2002 and divorce in 2004. In the period from 2002, various arrangements were contemplated, and in some cases documents were signed, in relation to the cessation of Mrs Lockrey's then ownership or control of Blamathon and for the making by Mrs Lockrey of provision for the two children of Mr and Mrs Cooper's marriage. Not all of those arrangements, if indeed any, came to fruition.

1. In relation to Blamathon, Mr Cooper was noted on ASIC's records as having been appointed as a director of Blamathon in October 2002. He was removed as a director a month later. He was again appointed as a director in June 2003 and again removed in September 2004. At no time was Mr Cooper registered as the owner of any shares in the company. At all relevant times, the legal ownership of the majority of the shares was held by Mrs Lockrey. For much of the time from its incorporation, Mrs Lockrey was the sole director of Blamathon. The ASIC extracts disclosing the Blamathon shareholdings and directorships were at Blue 540.

Mr Cooper's claims

1. Mr and Mrs Cooper first sought advice from Mr Winter in relation to their then taxation liabilities. In his first statement (Blue 1I), Mr Cooper puts this as occurring in 1996, which is consistent with the rendering by Mr Winter of a memorandum of fees dated 10 October 1997 to Mr and Mrs Cooper for two hours time for "providing general advice with respect to financial position" (Blue 68). No account was given by Mr Cooper of any earlier advice sought from, or given by, Mr Winter. The assumptions that Mr Cooper's expert witness was instructed to make included that Mr Cooper first retained the professional services of Mr Winter in about 1996 (Assumption 11, Blue 19).

1. Mr Cooper, however, alleged that from about the winter of 1994 Mr Winter acted as his solicitor on an oral and implied retainer to advise and act for him as to his commercial business interests and his personal legal affairs (Red 17U).

1. Mr Cooper alleged that under that retainer Mr Winter had acted as his solicitor in 2002 in giving advice as to the proposed acquisition by Mr Cooper of the Bells Line of Road property (Red 18U). At that time, Mr Cooper was an undischarged bankrupt (at Blue 74G is a copy of the debtors' petition). The advice that Mr Cooper says he was given, in essence, was for the property to be acquired in Blamathon's name; that Blamathon would hold the property in trust for him; and that, when Mr Cooper was discharged from bankruptcy, Blamathon would transfer the legal title to the property to him (Blue 3T-4K). In Mr Cooper's words, he was told that when he was discharged from bankruptcy it would "all come back" to him, though Mr Cooper was inconsistent in his evidence as to what precisely was to come back to him (Black 39J; 43I; cf Black 44G-N). Mr Cooper claimed that, in giving that advice, Mr Winter breached a duty of care owed to him either under the alleged retainer or otherwise arising from the circumstances in which that advice was sought (Red 18-20).

1. The particulars of negligence (set out at [9B] of the Amended Statement of Claim) (Red 19-20), included Mr Winter not advising Mr Cooper that if Blamathon purchased the property it would hold and control the property and Mr Winter's failure to advise as to the need for, and to prepare or cause to be executed, a trust instrument to identify Mr Cooper as the beneficial owner of the Bells Line of Road property. The same particulars were relied upon as giving rise to the breach of an implied duty of care arising from the alleged retainer (at [10A]) (Red 20), though it was also there alleged that Mr Winter gave an "undertaking" that the property would be transferred to Mr Cooper upon his discharge from bankruptcy.

1. Mr Cooper also alleged that Mr Winter had breached a fiduciary duty, arising out of the solicitor/client relationship, owed to him (Red 21-22). The alleged breach of fiduciary duty was particularised by reference to Mr Winter's acceptance of appointment as a director of Blamathon in 2003 and by him acting against Mr Cooper's interests and voting in 2004 to remove Mr Cooper as a director of Blamathon ([12A] of the Amended Statement of Claim) (Red 21).

1. The particulars of negligence/breach of retainer alleged against Mr Winter (at [9B(b)] and at [10A]) included that Mr Winter had advised Mr Cooper that Blamathon would hold the Bells Line of Road property in trust for him and had advised, and/or undertaken, that, upon Mr Cooper's discharge from bankruptcy, Blamathon would transfer the legal title to the property to him. There was no allegation in the pleading that Blamathon in fact held the legal title to the property in trust for Mr Cooper at any particular time. Nor was there any allegation in the pleading that Mrs Lockrey held the shares in Blamathon in trust for Mr Cooper at any time.

1. Counsel appearing for Mr Cooper on the appeal, Mr Boyd, summarised Mr Cooper's "common law" case at trial as being that he was told that he could put the Bells Line of Road property, when he purchased it, in the name of Blamathon Pty Limited because that would be "safe" for him and that "[i]t will all come back to you"; that Mr Cooper had relied upon that advice and proceeded with the purchase in the name of Blamathon; and that, as it turned out, there was no trust instrument in place (AT 3.11-15). Hence, his damages claim was for the loss of the benefit of that property in the form of the proceeds of sale or the loss of the opportunity to develop that property (AT 3.24-28).

1. The fiduciary duty claim also related to the loss of the ability to share in the profits from the sale or development of the property. That claim was based on an alleged duty arising out of the dealings between the parties and the nature of their ongoing relationship (AT 3.30-35).

1. Insofar as the grounds of appeal, to which I will refer shortly, challenge findings made by the primary judge as to the beneficial ownership of the shares in Blamathon, Mr Boyd appeared to accept (at AT 33.40) that the finding that Ms Lockrey was the beneficial owner of the shares in Blamathon probably made no difference to the common law breach of duty claim - there referring to the common law cause of action he had identified as being that Mr Cooper had been given advice and had acted upon it against his own interest by leaving the situation as it was on the advice of Mr Winter "without ensuring, as he would have done had he been properly advised, that there was a trust in place".

Findings at first instance

1. The primary judge (at [107]) (Red 60) accepted Mr Winter's evidence that he had been retained to act as Mr Cooper's solicitor on three discrete matters in 1997, 1998 and 2002, respectively, as noted at [3] of her Honour's reasons. Her Honour found that Mr Winter's retainers were limited to those discrete matters and that none of the conversations that were not referable to any of those discrete matters was sufficient to give rise to a broader retainer or, relevant to the breach of fiduciary duty claim, gave rise to any conflict that Mr Winter was obliged to avoid ([107]) (Red 60). Her Honour found that the allegations of breach of duty of care and breach of fiduciary duty had not been made out ([108]) (Red 61). Her Honour further found that there was nothing negligent or misleading about anything Mr Winter had said to Mr Cooper and hence that Mr Winter was not in breach of any duty of care in respect of advice given to Mr Cooper outside the scope of the three discrete retainers ([111]) (Red 61).

1. As to causation, her Honour considered that, even if Mr Winter had given the advice that Mr Cooper said he had given him in relation to the Bells Line of Road property, it was difficult to see how this could have caused any loss ([115]) (Red 62). Her Honour found (at [116]) (Red 63) that Mr Cooper would have had no prospect of acquiring the Bells Line of Road property on his own account at the relevant time and (at [117]) (Red 63) that the prospects of Mrs Lockrey being persuaded to create a fixed, rather than a discretionary, trust of her shares in Blamathon in Mr Cooper's favour were non-existent.

1. Her Honour considered that even if a notation in a document on which Mr Cooper relied, a letter dated 19 September 2003 from Mr Winter, as to Mrs Lockrey holding the Blamathon shares on trust for Mr and Mrs Cooper, had truly represented Mrs Lockrey's instructions, there was insufficient certainty about the terms of any such trust for this to have been sufficient to create a trust in favour of Mr Cooper in respect of the Blamathon shares ([118]) (Red 63).

1. Even had there been a finding for Mr Cooper on liability, her Honour found that there was no substantial evidence of loss ([119]) (Red 64). At [121] (Red 64), her Honour identified a fundamental flaw in the damages claim, namely that damages would have been measured on a reliance basis and that the evidence did not establish that Mr Cooper would have been able to purchase the Bells Line of Road property in his own name. At [122] (Red 64), her Honour noted that there was no evidence of various matters in relation to the development of that property that Mr Cooper claimed would have proceeded had he purchased the property.

1. Her Honour dismissed Mr Cooper's claim in its entirety (Red 65).

Appeal grounds

1. As Mr Boyd made clear in the course of submissions, the challenges by Mr Cooper on this appeal are principally challenges to her Honour's factual findings as to the content of two critical conversations in 2002, on which Mr Cooper relies for the allegations based on the existence of a retainer in relation to the Bells Line of Road property acquisition, and as to her Honour's conclusion that there was no fiduciary obligation owed to Mr Cooper as alleged (AT 2.17-44). In relation to the disputed conversations, Mr Boyd (at AT 2.18) based the common law claim squarely on the second of those conversations, occurring in June 2002.

1. By Notice of Appeal filed on 6 June 2012 (Red 75-80), it is contended that her Honour erred in the following respects:

1 in failing adequately to consider the evidence as to whether there was a retainer between Mr Cooper and the respondents which applied to the Bells Line of Road property.

2 in finding that there was no retainer between Mr Cooper and the respondents which applied to the Bells Line of Road property.

3 in failing to find that in the absence of a retainer, the respondents owed a duty of care in respect of the Bells Line of Road property.

4 in failing to find that there was a fiduciary obligation owed by the respondents to Mr Cooper in respect of the Bells Line of Road property.

5 in finding that Mrs Lockrey was the beneficial owner of the shares in Blamathon.

6 in finding (at [65]) that Mrs Lockrey's instructions that she held her shares in Blamathon on trust for him and Mrs Cooper were incorrectly recorded by Mr Winter in the letter dated 19 September 2003 in circumstances where:

(a) there was an admission made by Mrs Lockrey in cross-examination that she held the shares in trust at that time;

(b) Mr Winter's evidence was that Mrs Lockrey's instructions were that she held the shares in trust at that time,

(c) Mr Winter did not give evidence that these instructions were incorrectly recorded, and gave evidence that these instructions were correctly recorded;

(d) there was no evidence supporting her Honour's finding.

7 in finding (at [95]) that it would be inconceivable that he would have placed trust in Mrs Lockrey to hold her Blamathon shares in trust for Mr Cooper in circumstances where:

(a) Mr Cooper's evidence was that he had been given that assurance by Mr Winter;

(b) Mrs Lockrey had signed the letter dated 19 September 2003;

(c) Mrs Lockrey's evidence was that it was her intention at that time to hold the Blamathon shares in trust, but that she subsequently changed her mind and informed Mr Winter of that;

(d) Mr Winter's evidence was that Mrs Lockrey's instructions were that she held the shares in trust at that time.

8 in finding (at [5]) that Mr Cooper only gave Mr Winter instructions as a director or employee of Blamathon (other than for the matters outlined at [3] in her Honour's reasons) in circumstances where Mr Winter produced no documents in relation to advice he gave Mr Cooper, for which Mr Winter could not provide an explanation to the Court.

9 in failing to find on the evidence that the respondents breached:

(a) their duty to Mr Cooper under their retainer by him;

(b) their duty of care to Mr Cooper;

(c) their fiduciary duty to Mr Cooper.

10 in finding that if there had been any breach by the respondents, such breach had not caused any damage to Mr Cooper.

11 in failing adequately to consider the evidence and arguments bearing upon the issues of retainer, duty of care, fiduciary duty, breach of duty, causation and damage, and to give adequate reasons for decision on those issues.

1. For the reasons set out below, I consider that the appeal should be dismissed with costs.

Alleged retainer/duty of care

Grounds 1-2 - alleged failure adequately to consider the evidence as to whether there was a retainer which applied to the Bells Line of Road property; finding that there was no such retainer

1. The alleged retainer pleaded in paragraphs [3], [3A] and [4] of the Amended Statement of Claim (Red 17-18) was, in substance, an ongoing general retainer in existence at all relevant times from the winter of 1994. It was alleged to be "oral in entirety and further ... implied from the defendant's conduct toward the plaintiff and by conduct of the plaintiff's affairs by the defendant after being retained by the plaintiff in 1994" ([3A]).

1. The respondents denied the alleged retainer. It was not disputed by Mr Winter that he had acted for Mr and Mrs Cooper in relation to particular matters over the period from 1996: giving them advice as to their financial position at some time after his initial meeting with Mr Cooper in 1994 (Blue 27C); drafting a sale agreement between Mrs Lockrey and them in relation to the sale of the Ross Street property in 1997 (Blue 27R-T) and communicating with the Australian Taxation Office in 1998 (Blue 28G-29H). Mr Winter or his firm had prepared the couple's wills in September 2002 for which an invoice was rendered on 4 September 2002 (Blue 167). What was, however, disputed was the existence of an ongoing retainer over the period from 1994, as pleaded, and, relevantly, any retainer to provide advice in relation to the Bells Line of Road acquisition.

1. Her Honour accepted (at [107]) (Red 60) Mr Winter's evidence that he had been retained on particular discrete matters. Those matters did not include the acquisition of the Bells Line of Road property. On appeal, Mr Boyd did not point to anything in the evidence of the initial instructions given to Mr Winter in about 1996, or the earlier meeting of the two in 1994, as evidencing a general or ongoing retainer that had been in place from 1994 onwards nor anything to suggest that the retainer in 1996 went beyond the advice then sought as to the couple's taxation liabilities arising out of or related to the Ross Street development. Rather, Mr Boyd focussed on the two disputed conversations, and the subsequent drafting by Mr Winter of various documents in the period from 2002 to 2004, as being more consistent with Mr Cooper's case based on the alleged retainer than her Honour's finding that there was no such retainer (AT 2.27-30).

1. The critical conversations were those that Mr Cooper said occurred in January 2002 and June 2002, respectively. Both were prior to the purchase by Blamathon of the Bells Line of Road property. The January 2002 conversation was before Mr Cooper had even identified the Bells Line of Road property as being for sale and/or a potential development opportunity.

1. Her Honour's consideration of, and factual findings in respect to, the January and June 2002 conversations may be found at [84]-[104] of her Honour's reasons (Red 53-60). Her Honour preferred Mr Winter's version of both conversations ([89]) (Red 54) principally because her Honour considered that Mr Winter's version was consistent with the objective circumstances summarised in [91] (Red 55) and with the documentary evidence, including the various draft documents to which her Honour had earlier referred in her reasons and which her Honour considered reflected various attempts by Mrs Lockrey to resolve the disputes between Blamathon, Mr Cooper and Mrs Cooper and to extricate herself from Blamathon.

January 2002 conversation

1. Mr Cooper's account of the January conversation was that he told Mr Winter that his marriage was not going well; that his mother-in-law and wife were "holding everything over my head"; and that he wanted to "start paperwork to get this sorted out", noting that he had only six months to go until he was discharged from bankruptcy. He says that Mr Winter told him: "[i]t will only take two weeks to change it over. Kath has to sign it over. She holds it in trust" and that, when he told Mr Winter that "[t]hey are saying that they're not signing it back over to me and Kath will fight me", Mr Winter said "Kath isn't saying that to me" (Blue 4C-J).

1. Mr Winter agreed that he had had a conversation with Mr Cooper at some time around January 2002, in which Mr Cooper had told him that his marriage was not going so well (Blue 45S-W). However, Mr Winter denied the balance of the alleged January 2002 conversation.

June 2002 conversation

1. The second disputed conversation was in June 2002. Mr Cooper said he had a telephone conversation relating to the Bells Line of Road property in which he informed Mr Winter that he wanted to "move on the transaction quickly"; asked Mr Winter how he should proceed and whether he should incorporate a new company structure to acquire the property; and reminded Mr Winter that he was a bankrupt but that he would be discharged from bankruptcy in a couple of months (Blue 4K-5J).

1. According to Mr Cooper, in that conversation Mr Winter advised him to proceed with the purchase in the name of Blamathon as it would be easier to borrow funds needed to develop the property through that company structure (Blue 4W). Mr Cooper said that he asked Mr Winter if there would be any difficulty in him obtaining the benefit from the property, in circumstances where it was purchased in the name of Blamathon, and that Mr Winter said:

there would be no problem as Kath owns Blamathon and Blamathon would hold the property in trust and would have to sign it back to you. ... We'll just put it all in Blamathon's name and then when you're discharged from Bankruptcy, it will all come back to you. (Blue 5F-J)

1. Mr Cooper said that Mr Winter also asked him to approach Blamathon's accountant, Mr Godwin, to get the paperwork started "for the transfer of the shares back to [him]" (Blue 5I-J). Mr Cooper went further, in his oral evidence-in-chief, saying that when he expressed a worry about his mother-in-law and his wife, Mr Winter had said: "[i]t will come back to you. Trust me. I am in control" (Black 32I-K).

1. Mr Winter's version of the June 2002 conversation (at [36] of his affidavit) was that Mr Cooper told him that there was a property at Bells Line of Road that he "wouldn't mind buying"; that Mr Winter said to Mr Cooper: "I don't see how you can do that, you are a bankrupt"; that Mr Cooper asked if he could form another company to buy it (to which Mr Winter said he gave the same response); and that Mr Cooper then suggested that Mrs Lockrey might buy it. According to Mr Winter, he responded to the effect that that was fine, as long as Mrs Lockrey was happy to do that and she instructed him to do it (Blue 29W).

"Objective circumstances"

1. The first complaint by Mr Cooper as to her Honour's acceptance of Mr Winter's version of both these conversations is that her Honour's summary (at [91]) (Red 55) of the objective circumstances failed to have regard to particular matters that it is contended are more consistent with Mr Cooper's version of the conversations.

1. The objective circumstances listed by her Honour at [91] (Red 55) were as follows:

(1) At the time the Ross Street Property was sold to Blamathon in late 1997, the plaintiff and Ms Cooper were in financial difficulties which ultimately led to their bankruptcy.

(2) The purchase price of the Ross Street Property, $250,000, was commensurate with its market value.

(3) Ms Lockrey was either unwilling or unable to assist the plaintiff and Ms Cooper to prevent their bankruptcies in August 1999.

(4) By early 2002 the plaintiff and Ms Cooper were having matrimonial difficulties which continued for some years, although until 2004 they continued to participate in the developments undertaken by Blamathon.

(5) Ms Lockrey was in a position to assist her daughter and had shown herself to be prepared to do so by causing Blamathon to buy the Ross Street Property for market value so as to pay out the mortgagee and derive such benefit as could be had from Stage 2 of the development.

(6) The terms of the Ross Street Agreement did not confer an interest in the Ross Street Property on either the plaintiff or Ms Cooper.

(7) Ms Lockrey was concerned to protect and provide for her grandchildren ...

(8) Ms Lockrey, through Blamathon, was prepared to develop Stage 2 of the Ross Street Property and the Bells Property, but only on the basis that her financial interests and those of Blamathon were protected.

(9) Ms Lockrey was prepared to employ the plaintiff's services in the development of properties.

(10) Ms Lockrey contemplated various legal structures over time that would permit her to extricate herself from Blamathon and the development of the Ross Street and Bells Properties but none of these came to fruition.

(11) Mr Winter principally acted for Ms Lockrey and Blamathon but he also acted for the plaintiff and Ms Cooper in that he:

(a) gave them financial advice about the effects of bankruptcy in 1996;

(b) acted for them in 1997 in respect of the agreement to transfer the Ross Street Property;

(c) made some communications with the ATO on their behalf in 1998; and

(d) drafted their wills in 2002.

1. The matters to which it is contended her Honour failed to have regard in this context are:

(i) the 19 September 2003 letter prepared by Mr Winter on instructions from Mrs Lockrey and signed "agreed" by Mrs Lockrey, stating that the shares she held in Blamathon were held in trust for Mr and Mrs Cooper (Blue 346);

(ii) the benefit Mr and Mrs Cooper retained in the Ross Street property development as evidenced in the 10 October 1997 agreement (Blue 59);

(iii) the discretionary trust deed prepared by Mr Winter and signed by Mrs Lockrey in his presence (Blue 129-160); the deeds of indemnity (Blue 186-188, 197-199, 220-222); the 2003 deed (Blue 248-250); and the deed of arrangement (Blue 433-437).

1. Mr Boyd submits that these are contemporary documents reflecting what was in the contemplation of the parties at that time (Orange 30I) and providing evidence of the course of dealings and the ongoing relations between the parties (AT 2.41-44). Other than the October 1997 agreement (Blue 59), the particular documents to which Mr Boyd refers were all documents prepared, and in some cases signed, after the critical conversations. As explained below, the significance placed on a number of the documents by Mr Boyd was, broadly, that they made reference to a trust, even though the trust to which reference was there made was not a trust of the Bells Line of Road property, in the case of the 19 September 2003 letter and the discretionary trust deed, or that they made reference to Mr Cooper taking over Mrs Lockrey's obligations, with or without reference to Blamathon, in the case of the deeds of indemnity, 2003 Deed and draft deed of arrangement.

• 19 September 2003 letter

1. The 19 September 2003 letter (Blue 346) was sent by Mr Winter to Mrs Lockrey following a meeting on 15 September 2003 of the three directors of Blamathon at that time: Mr and Mrs Cooper and Mr Winter. The letter was headed "Blamathon Pty Limited Affairs". In it, Mr Winter referred to a recent telephone conversation relating to "settlement". The letter stated:

We confirm that settlement is to proceed on the following basis:

1. That on settlement you are paid the sum of $100,000.00;

2. That you are paid the further sum of $60,000.00 within eight weeks of settlement taking place;

3. That within eight weeks of settlement you are reimbursed for the expenses which you have outlaid on behalf of Kim and Peter pursuant to your email dated 15.9.03;

4. That you have transferred to you Lot 21 Tollgate Crescent, Windsor, at no cost to yourself.

We note that the above is in satisfaction of any claim which you may have against Blamathon Pty Ltd.

We further note that the shares which you hold in Blamathon Pty Limited are held in trust for Kim and Peter Cooper.

1. The letter was signed by both Mrs Lockrey and Mr Cooper. Mrs Lockrey's signature appeared directly beneath the words, apparently in her handwriting, "agreed by K.M.Lockrey". The letter did not make clear on its face whether it was written by Mr Winter in the capacity for which Mr Cooper contends, namely as Mr Cooper's solicitor or pursuant to an ongoing or general retainer by Mr Cooper, or whether, as Mr Winter contends, Mr Winter was then acting on Ms Lockrey's instructions.

1. What Mr Boyd places reliance on in this letter, as being consistent with Mr Cooper's version of the disputed conversations and as part of a course of dealing from which an ongoing solicitor/client retainer or fiduciary duty should be inferred, is the statement at the conclusion of the letter noting that Mrs Lockrey held her shares on trust for Mr and Mrs Cooper. Mr Boyd points to the evidence of Mr Winter and Ms Lockrey in cross-examination as to this letter, to which I will refer later when considering Grounds 6 and 7 of the Amended Notice of Appeal, when challenging her Honour's findings at [65] (Red 49).

1. Even assuming that the signature by Mrs Lockrey under the words "[a]greed by" at the foot of the letter amounted to an acknowledgment, or admission, by her that the Blamathon shares were then held by her on trust for Mr and Mrs Cooper, that statement does not provide support for the assertion by Mr Cooper that back in January 2002 he had sought advice from Mr Winter as to things to be "sorted out" or "signed back" to him. There had been no suggestion at that stage of any transfer of Blamathon shares to him. Nor is it consistent with what Mr Cooper contends Mr Winter had advised him in June 2002, namely that the Bells Line of Road property would be held on trust for him. It does not provide a basis for concluding that her Honour's finding that Mr Winter's version of the conversation was more reliable ([107]).

1. Insofar as the submission is that her Honour failed to have regard to the letter when considering the claimed retainer, it was clearly a document to which her Honour gave consideration (from [59]-[68]) (Red 48-49) and which her Honour must have had in mind when approaching the findings as to the disputed conversations.

• October 1997 agreement

1. The second document to which it was said the primary judge failed to have regard when taking into account the "objective circumstances" was the October 1997 deed drafted by Mr Winter and signed by each of Mrs Lockrey and Mr and Mrs Cooper (Blue 59). The recitals to that deed recorded, incorrectly as it quickly transpired, that Mrs Lockrey had purchased the Ross Street property. No such purchase had been effected at that time. Therefore, at most, the deed could have been seen as an agreement to purchase the property. The deed went on to make provision for the payment in the future of "additional consideration" to Mr and Mrs Cooper out of the proceeds of sale of the subdivided lots the subject of that development. Nothing in the deed purported to give Mr and Mrs Cooper any interest in the property following its transfer.

1. Mr Winter was cross-examined as to the acknowledgment in clause 5 of the deed that each of the parties had been given the opportunity to seek legal advice and explained that he had offered that opportunity to all the parties because he was uncomfortable that they all wanted him to prepare the deed and all wanted to sign it in front of him (Black 101I-L). In his affidavit (Blue 27M-S), Mr Winter deposed that he had advised Mrs Lockrey to obtain independent legal advice in relation to the transfer of the property and that he acted for Mr and Mrs Cooper. However, beyond documenting the October 1997 agreement, Mr Winter does not appear to have acted further in relation to the transaction. The purchase was in fact made in the name of Blamathon. Mr Winter did not act on that purchase (Black 106E;Q).

1. Mr Cooper's evidence (Blue 2F-M) as to the context in which Mr Winter had advised Mrs Lockrey to obtain independent advice was that there had been a discussion about the transfer of title to the Ross Street property to Mrs Lockrey in trust for his wife and him. That, however, is not consistent with the October 1997 agreement, which made no reference to the Ross Street property, or for that matter the shares in Blamathon, being held in trust by Mrs Lockrey for Mr and Mrs Cooper. Such an arrangement would arguably have been inconsistent with the payment of market value for the acquisition of their interest in the property, such payment being one of the matters expressly noted by her Honour as part of the objective circumstances (at [91]) (Red 55). The transfer form signed by Mr and Mrs Cooper to effect the transfer of the property to Blamathon did not disclose that it was acquiring the property as trustee (Blue 69).

• 2002/2004 documents

1. As to the third of the matters to which it is said that her Honour failed to have regard when considering the "objective circumstances" relevant to which version of the disputed conversations should be accepted, reference is made to various documents drafted by Mr Winter or his firm in the period from 2002 onwards.

1. The first of those documents, chronologically, was a Discretionary Trust Deed apparently prepared and executed at some stage around the time that contracts for the purchase by Blamathon of the Bells Line of Road property were exchanged in August 2002 (Blue 129-160). The timing of this document is placed around August 2002 following the sending of a letter by Mr Winter to Blamathon's accountant on 21 August 2002 (Blue 92).

1. In the first paragraph of that letter, Mr Winter recorded that he had been instructed by Mrs Lockrey, Mr Cooper and Mrs Cooper to transfer the Blamathon shares to Mrs Cooper: as to 50 shares, to be held for one of Mr and Mrs Cooper's children and as to the other 50 shares to be held for their other child.

1. In the second and third paragraphs, Mr Winter recorded that he had been instructed to draft a discretionary trust deed in which the specific beneficiaries were the Cooper children and the further general beneficiaries were Mr and Mrs Cooper and that, after the transfer of the shares, Blamathon intended to change its name to Minoan.

1. The significance placed by Mr Boyd on the above was, first, that the letter of 21 August 2002 showed that Mr Winter had been instructed not only by Mrs Lockrey but also by Mr and Mrs Cooper that there was to be a transfer of shares in Blamathon to Mrs Cooper to be held on a discretionary trust and, second, that a discretionary trust was in fact established. Although the discretionary trust established by the deed was one of which Mrs Cooper was not the trustee and the trust property did not expressly include the Blamathon shares or the Bells Line of Road property, this document was relied upon by Mr Boyd as being "consistent with discussions about trusts" (AT 7.18).

1. As to the source of the instructions recorded in the 21 August 2002 letter, there is room for debate as to who provided the instructions in the second and third paragraphs. Moreover, it by no means follows that the person or persons providing the instructions recorded in the various paragraphs of the letter was someone by whom Mr Winter was retained as a solicitor. Read strictly, the letter records no more than the receipt of instructions as to various matters. A solicitor may be instructed or may receive instructions, in a loose sense, from persons other than that solicitor's client. So, for example, a solicitor acting for one party to a particular transaction, say, here, Mrs Lockrey, might seek information as to particular matters in relation to that transaction from persons other than his or her client.

1. In the present instance, any instructions for the transfer of the shares in Blamathon to a trustee to be held on trust could only have come from Mrs Lockrey, as the holder of those shares. However, the steps contemplated in that letter also included the appointment of Mrs Cooper as trustee, for which appointment, presumably, her consent would have been sought. Hence, "instructions" on that aspect of the matter would logically come from Mrs Cooper, without Mrs Cooper necessarily having a solicitor/client relationship with Mr Winter. Read in that way, the reference to instructions from Mr and Mrs Cooper in the first paragraph of the letter is not of itself inconsistent with a finding that the transaction in relation to the acquisition of the Bells Line of Road property, and the later proposal in relation to a transfer of Blamathon shares to Mrs Cooper to hold those shares on trust for the children, was not one in respect of which Mr Winter was retained by or acting for Mr Cooper.

1. The undated Discretionary Trust Deed signed by both Mrs Lockrey and Mrs Cooper created a discretionary trust with the classes of beneficiaries referred to in Mr Winter's 21 August 2002 letter. However, all that was recorded as having been settled on the trustee, a non-existent entity named Minoan Pty Ltd, was a relatively small sum of money. There was no reference in the Deed to any transfer of Blamathon shares to be held on trust by the trustee under the terms of that Deed.

1. Mr Boyd contended (at AT 6.34/50) that the undated discretionary trust deed was consistent with Mr Cooper having been told that Blamathon held the shares in trust for him. However, Blamathon was not the owner of the shares; Mrs Lockrey was the owner. Moreover, the June 2002 conversation was relied upon in the pleading as amounting to the giving of advice that the Bells Line of Road property, not the shares in Blamathon, was to be held in trust for Mr Cooper.

1. The second set of documents referred to in this context are three deeds of indemnity that were prepared in about October 2002 by Mr Winter in which provision was made for Mrs Lockrey to be indemnified by each of Blamathon, Mr Cooper and Mrs Cooper, respectively, in respect of personal guarantees said to have been given by Mrs Lockrey relating to obligations incurred by the party granting the indemnity (Blue 186-188; Blue 197-199; Blue 220-222).

1. Mr Cooper signed the deed of indemnity in which he was named as a party and that deed was dated 14 October 2002. It was not countersigned by Mrs Lockrey. Mr Winter's evidence was that the deeds of indemnity were never "actioned" (Blue 118H). Mrs Lockrey said that this was because she found out that Mr Cooper had changed her company's name without her knowledge (Blue 165H). It is not clear whether this is a reference to the use of the name Minoan. However, 14 October 2002 is the date on which Mrs Lockrey signed a document resigning as a director of Blamathon (Blue 194-195), which she later claimed was done under duress (Blue 15N-P). Mr Cooper relied on Mrs Lockrey's resignation in order to become registered as a director of Blamathon in November 2002 (Blue 218-219) just prior to completion of the sale of the Bells Line of Road property to Blamathon (Blue 230-232).

1. The deed of indemnity signed by Mr Cooper is relied upon by Mr Boyd as being consistent with Mr Cooper taking on the obligations of Mrs Lockrey as director and shareholder of Blamathon (AT 8.24), though it does not make express provision for this. The deed of indemnity between Blamathon and Mrs Lockrey, said by Mr Boyd to be not going directly to the point, is again relied upon as consistent with the case put by Mr Cooper at trial (AT 9.6), though it is not clear that it is linked in any way to obligations in relation to the Bell's Line of Road property.

1. While the deeds of indemnity are consistent with an intention by Mrs Lockrey at that time that she would withdraw from the control and/or management of Blamathon, they do not lead to a conclusion that Mrs Lockrey then held the shares or property of Blamathon on trust for Mr Cooper or had agreed to do so. They do not lead to the conclusion that there was at this stage anything binding Mrs Lockrey to such a course of action. Further, the entry into such deeds of indemnity does not require the conclusion that, at whatever time Mrs Lockrey gave guarantees for the benefit of Blamathon to which the deeds refer, she was doing so because Mr Cooper held an equitable interest in the shares or property of Blamathon.

1. The third of the documentary material relied upon by Mr Boyd for this submission is a deed, again prepared by Mr Winter, signed by each of Mrs Lockrey, Mrs Cooper and Mr Cooper at an unidentified time in 2003 (referred to as the 2003 Deed) (Blue 248-250).

1. The 2003 Deed recorded that Mrs Lockrey was signing in her own right and as director of Blamathon. The 2003 Deed recited, among other things, that Mrs Lockrey was the sole director of Blamathon; that Blamathon was "the Trustee of the Cooper Family Trust and holds real estate and other property in its capacity as Trustee under the Cooper Family Trust"; and that Mrs Lockrey was desirous of retiring as a director and appointing, in her stead, Mr and Mrs Cooper and Mr Winter as directors of the company. The real estate and other property referred to in the recitals were not identified.

1. The 2003 Deed made provision for Blamathon, immediately upon execution, to apply for finance in order to refinance its existing financial obligations so as to ensure that all guarantees previously given by Mrs Lockrey were extinguished, withdrawn and/or paid out in full (Clause 1) and that, upon receipt of a satisfactory written loan approval that had the effect of discharging any personal guarantees previously given by her, Mrs Lockrey would forthwith cause a meeting of Blamathon to be held at which Mr Winter and Mr and Mrs Cooper would be elected as directors and she would then resign as a director (Clause 2).

1. Steps were taken in June 2003 consistent with the implementation of certain of the provisions of the 2003 Deed. An application was made in June 2003 on behalf of Blamathon to a finance broker for a loan to refinance an existing AMP Finance facility as well as to repay a loan to Mrs Lockrey, stated to be in the amount of $200,000, and to provide surplus monies "for future investment" (Blue 283-294), under cover of a letter that referred to Mr and Mrs Cooper "now" being in control of Blamathon "by paying out" Mrs Lockrey. There is no suggestion that Mrs Lockrey was privy to the making of that application. Resolutions were passed at a meeting of Blamathon on 17 June 2003 (Blue 232) to the effect that each of Mr and Mrs Cooper and Mr Winter be appointed as directors; that Mr Winter be appointed chairman; that Mrs Lockrey's resignation be accepted; and that the company accept a loan set out in the letter of offer from the finance broker through whom the finance application had been made. Mr and Mrs Cooper then signed a letter of offer for the refinancing of the Blamathon facility on 3 July 2003, in their capacity as directors (Blue 232Q). All of this is consistent with an intention on the part of Mrs Lockrey at that stage to cease her involvement with or control of Blamathon, though not necessarily consistent with any arrangement of the type that Mr Cooper said he had been advised would be put in place in January or June 2002.

1. Finally, reliance is placed by Mr Boyd on the preparation by Mr Winter, at some time around or after 1 September 2004, of a draft Deed of Arrangement in which the named parties were Blamathon, Mrs Lockrey and each of Mr and Mrs Cooper (Blue 433-437).

1. The draft deed recited that Mr and Mrs Cooper had, up until 1 September 2004, been employed by Blamathon to carry out the objects of the corporation and that Mrs Lockrey had decided to forego any benefit that might be available to her as a shareholder of Blamathon and to transfer or deal with her shares in Blamathon in accordance with the directions of Mr Cooper, provided that there was full compliance with the provisions of the deed. The draft deed provided that Mr and Mrs Cooper were to accept the financial provision set out for them in the deed in final satisfaction of any claims.

1. There is no suggestion that this deed was ever signed. It was relied upon by Mr Boyd as indicating that Mr Winter had received instructions from all of the parties thereto. There is, however, nothing on the face of the document to suggest that this was necessarily the case. It is equally consistent with Mr Boyd receiving instructions from Mrs Lockrey as to a proposed means of resolving what Mr Winter referred to as "these family situations" (Black 120L).

Conclusion as to the complaint as to the alleged failure to have regard to the "further objective circumstances"

1. It is not clear, on Mr Cooper's version of the January 2002 conversation, what it was that was to be "sorted out" or "signed back over". Nor is it clear what Mr Cooper says he was then told was held in trust. What is clear is that these cannot have been references to the Bells Line of Road property, since Mr Cooper did not become aware that it was for sale until about early June 2002 (Blue 4K). There is also no basis for thinking that this was a reference to the shares in Blamathon, since there is no account of any discussion by that stage as to a transfer of the shares of the company or a trust in relation to those shares.

1. The only property dealing that had taken place by January 2002, to which the first disputed conversation as recounted by Mr Cooper could logically have related, was the acquisition by Blamathon of the Ross Street property. The only documentation relating to this was the signed October 1997 agreement. While it is possible that, as at January 2002, what Mr Cooper might have considered needed to be "sorted out" was his, and his wife's, entitlement under the October 1997 agreement to payment of the "additional consideration", this would not support the conclusion that there was a retainer in relation to the acquisition of the yet-to-be-identified Bells Line of Road property or an ongoing generalisation. Moreover, there had been nothing to that point to suggest that the payment of "additional consideration", once the subdivided lots in the Ross Street development were sold, was to be effected by something to be "signed over".

1. The submission that her Honour failed adequately to consider the "benefit" retained by Mr and Mrs Cooper in the Ross Street property under the October 1997 agreement suffers from the problem that they retained no interest in the property at all under that agreement. At most they had a contractual right to payment of moneys, assuming the agreement had not been superseded by the later arrangements in which Mr Winter had played no part and by which Blamathon, and not Mrs Lockrey, had actually acquired that property.

1. As to the import of the 19 September 2003 letter, relied upon as supporting Mr Cooper's version of either the January or June 2002 conversation, in its terms the letter records a proposed or purported "settlement" of matters between the various parties. The fact that this might be achieved in particular ways does not support a conclusion that this was confirming an existing arrangement, as opposed to a new arrangement in order to resolve matters.

1. The acknowledgement in the letter that the Blamathon shares were held in trust for Mr and Mrs Cooper does not accord with Mr Cooper's account that Mr Winter had said in 2002 that the property would be held on trust for him. It is certainly conceivable that a claim by Mr Cooper to the property could have been met by transferring to him the Blamathon shares. However, the 19 September 2003 letter is equally consistent with it being part of an attempt prospectively to resolve matters, without involving a recognition or acknowledgment that this was what had been initially proposed in June 2002. Even if there was at that time a trust in respect of the Blamathon shares as referred to in the letter, that is not consistent with Mr Cooper's account of either of the disputed conversations. Nor does it make more likely that Mr Winter was acting in relation to the Bells Line of Road property over the relevant period under a retainer on behalf of Mr Cooper.

1. As to the documents referred to at 13(iii) of Mr Boyd's submissions (Orange 29W-30G), it cannot fairly be said that her Honour had failed to have regard to those documents. Her Honour expressly referred (at [89]) (Red 55) to the consistency of Mr Winter's version with "documentary evidence, including the various draft documents referred to above", by which her Honour must have been referring at the least to the 2003 Deed that Mr Winter thought was "another document that was never actioned" (Black 120U) and the unsigned draft deed of arrangement. Her Honour considered that the documentary evidence reflected Mrs Lockrey's endeavours to resolve the disputes between Blamathon, Mr Cooper and Mrs Cooper, and to extricate herself from Blamathon ([89]) (Red 55). The documents clearly permit such a description. They do not in my opinion warrant the conclusion that they are more consistent with Mr Cooper's version of the January and June 2002 conversations, and hence his claim as to the existence of an ongoing retainer, than Mr Winter's version of those conversations.

1. Moreover, the alleged consistency Mr Boyd contends there is between these documents and Mr Cooper's version of the conversations, or the alleged ongoing retainer, goes no further in some instances than that there was a reference in those documents to a trust, i.e., that they are consistent with a trust being contemplated by the parties. The various document are not, however, consistent with what Mr Cooper contended in his pleading, namely that the Bells Line of Road property was to be held in trust for him by Blamathon. Nor are they consistent with any contention that Mr Winter advised Mr Cooper that the shares in Blamathon would be held in trust for him or that Mrs Lockrey ever agreed to hold her shares in trust for Mr Cooper alone. There is, for example, a clear inconsistency between a transfer of the Blamathon shares to be held in trust by Mrs Cooper as trustee for the benefit of the children, as contemplated in the 2003 Deed and referred to in the 19 September 2003 letter, and a trust of the shares in Blamathon in favour of Mr Cooper alone. The discretionary trust deed contemplates a quite different arrangement yet again. Mr Cooper's understanding, as at July 2002, was that the Blamathon shares were to be "changed into a trust" for his children and that Mrs Cooper was to become the "director/trustee of the company" (Blue 87-J).

1. There is an obvious difference between a proposal for the transfer of the Blamathon shares to Mrs Cooper to be held in trust for his children with the setting up of a discretionary trust in respect of which Mr Cooper was named as an additional member of the class of general beneficiaries. This may explain the confusion on the part of Mr Cooper as to what it was that he contended was held in trust for him and by whom (e.g. at Black 44).

1. By the time her Honour came to consider the findings in respect of the disputed conversations, her Honour had considered in detail the narrative of events. Her Honour had regard to the 21 August letter, for example, at [38] (Red 43), implicitly accepting Mr Winter's evidence that the suggestion in that letter that he was also acting for Mr Cooper and Mrs Cooper was a mistake. Her Honour had regard to the discretionary trust deed at [39] (Red 43), accepting that it established that the creation of a discretionary trust for Mrs Lockrey's grandchildren was in contemplation at some time and inferring that it had been in contemplation at least from 2002. The 19 September letter was considered from [59] - [66] of her Honour's reasons.

1. Overall, a consideration of the "further objective circumstances" to which Mr Boyd has referred, does not point to error in her Honour's findings as to the disputed conversations, nor as to her Honour's findings that there was no retainer as alleged by Mr Cooper.

"Apparent logic of events"

1. The second complaint made by Mr Cooper as to the basis on which her Honour rejected his version of the disputed conversations is that, when her Honour referred (at [92]) (Red 56) to the "apparent logic of events", her Honour was there referring to Mr Cooper's evidence as to advice that he said had been given to him by Mr Winter in 1996 rather than to events occurring in 2002 (Orange 30K).

1. Mr Cooper had given evidence that Mr Winter had advised him in 1996 to go into bankruptcy but only after arranging for the title to stage 2 of the Ross Street development to be transferred to someone that he could trust to hold the land in trust (Blue 1Q-T). The implausibility of such advice was something open for her Honour to take into account, particularly since the context in which Mr Cooper's version of the January 2002 conversation must have been understood was the previous property dealings, since otherwise the reference to "sorting" things out or signing things "back" would make no sense. In circumstances where Mr Cooper's case was that there was an ongoing retainer from 1994, any submission that his evidence as to the 1996 dealings should not have been assessed against the "apparent logic of events" cannot be accepted. Her Honour's conclusion as to the implausibility of Mr Cooper's account of events in 1996 does not point to any error in the findings as to the disputed conversations nor as to the findings as to the non-existence of the alleged retainer.

Course of conduct

1. Insofar as reliance was placed by Mr Cooper on a retainer to be implied from a course of conduct, Mr Boyd's submission is that the relationship between Mr Cooper and Mr Winter was "consistent" throughout the whole of the period from 1996 to 2004 and that nothing changed in that relationship except the "intervention" or "intercession of Blamathon (AT 5.35-45; 18.44-46; Orange 32E-S; 36D-N). Mr Boyd points to the fact that over this period there were occasions on which Mr Cooper provided instructions to Mr Winter. He submits that this Court should draw inferences from the documents referred to above that Mr Winter continued to act for Mr Cooper or for all parties over the period through to 2004 (AT 11.23).

1. Mr Winter's evidence was that he had regular dealings with Mr Cooper "as a director of" Blamathon (Black 126Y-127A), an answer that is not inconsistent with Mr Cooper's position that he continued to work on the Ross Street development on behalf of Blamathon during his bankruptcy. Therefore, there was a logical explanation, that it was open to her Honour to accept, that the provision of instructions from time to time by Mr Cooper in relation to Blamathon's affairs was not indicative of a solicitor/client retainer between Mr Winter and Mr Cooper in an individual capacity. Apart from the periods in which Mr Cooper was a director of Blamathon, namely from June 2003 to September 2004 and, assuming he had earlier been validly appointed following Mrs Lockrey's resignation letter, from October 2002 to November 2002, Mr Cooper was only in a position to give instructions on behalf of Blamathon with Mrs Lockrey's authority as the majority shareholder, not in his own right. The giving of those instructions is consistent with Mr Winter having formed a solicitor/client relationship with Blamathon and/or Mrs Lockrey, from the time of the acquisition of the Bells Line of Road property by Blamathon, and simply obtaining direction or instructions from Mr Cooper on various matters while in the course of acting for Blamathon.

1. Reliance is also placed by Mr Boyd on the fact that Mr Winter acted not simply for Blamathon during the period through to 2004 but also for individuals such as Mr Cooper's mother in respect of a mortgage to Blamathon (Orange 32P-Q). Mr Winter admitted that in June 2001 he had acted for Mr Cooper's mother on a mortgage transaction but deposed that this was on instructions from Mrs Lockrey (Blue 29Q), which detracts from the force of Mr Boyd's submission. In any event, the fact that Mr Winter acted for Mr Cooper's mother on an individual transaction does not make it more likely that he held a general retainer for Mr Cooper over the period.

1. Mr Winter's dealings with Mr Cooper from the time of Mr Cooper's bankruptcy in 1999, other than the one instance relating to the drafting of his and Mrs Cooper's wills, are consistent with Mr Winter's account of events: namely, that Mr Winter was retained by Blamathon, on instructions from Mrs Lockrey, to act on the purchase of the Bells Line of Road property once the possibility of its purchase by Blamathon had been suggested to her by Mr Cooper (Blue 29U-30P; 31S-33D; 33M-34P) and that thereafter he acted for Blamathon from time to time on instructions from Mrs Lockrey (Blue 27H-J); and that, at a later stage, Mr Winter acted on the instructions of Mrs Lockrey in drafting various agreements to reflect her changing instructions as the major shareholder of Blamathon or, in the family context, as to how she sought to resolve issues arising out of the breakdown of the relationship between Mr and Mrs Cooper, such as the drafting of the proposed deed of arrangement (Blue 30X-31R; Black 120U-W).

1. The fact that a client instructs solicitors on successive matters does not mean that there is a general or ongoing retainer in place. Ordinarily, one might expect that a general retainer of the kind that the solicitor was committing himself or herself to accept instructions on matters, whether of a specific or general nature, from a particular client - and hence not in a position to accept a retainer from a client whose interests would conflict with the former client, would be recorded in writing; if not, at least the subject of an oral agreement. Here, there was nothing in the relevant conversations to support the assertion of a general retainer. The mere fact that Mr Winter had dealings with Mr Cooper over the period does not point to error in her Honour's findings as to the non-existence of the claimed retainer.

1. The highest Mr Cooper's case reaches is that at one point, September 2003, Mrs Lockrey signed a letter in terms agreeing with the proposition that her shares in Blamathon were held in trust for Mr and Mrs Cooper. Mr Curtin points to the unchallenged factual findings that Mrs Lockrey would not have declared such a trust (referring to the judgment at [95] and [117] - [118]) (Red 57; 63; Orange 47P-R).

1. As to her Honour's finding that no loss was caused because Mr Cooper could not have acquired the Bells Line of Road property anyway, Mr Boyd referred to the approval of the refinancing application made on behalf of Blamathon and scheduled for settlement on 19 September 2003, as support for the proposition that Mr Cooper would have been able to acquire the property after his discharge from bankruptcy (Blue 283-297; 307-314). However, the applicant for that refinance was Blamathon. Mr and Mrs Cooper were identified as guarantors. The security for the loan was identified as the Bells Line of Road property and two properties at Windsor. Mr Boyd submitted that the latter two properties were ones in which Mr and Mrs Cooper lived and in which Mr Cooper had an interest pursuant to the October 1997 agreement (Orange 34V). However, Mr Cooper obtained no interest in any of the properties the subject of the Ross Street development under the 1997 agreement and it is not clear how Mr Cooper, as a then bankrupt, would have been in a position to offer as security any properties in which he might previously have had an interest. Mr Cooper's statement of affairs in his bankruptcy did not disclose any interest in the named properties (see ITSA report Blue 76-81).

1. As at August 2002, Mr Cooper was an undischarged bankrupt. There is nothing from which to presume that Mr Cooper could, on or shortly after discharge of bankruptcy, have purchased the Bells Line of Road property in his own name, with only that property as security. In the absence of a legal or equitable interest established in the other properties put forward as security for the Blamathon refinance, it could not be assumed that Mr Cooper would have had the ability in 2002 to put those forward as security for a borrowing in his own name. Any suggestion that Mr Cooper might have been prepared to wait until a later date to acquire the property is inconsistent with his statement to Mr Winter that he wanted to move quickly on the transaction.

1. Having regard to the above, her Honour did not err in the findings made as to breach of duty, causation and loss. Grounds 9-10 have not been established.

Ground 11 - failing adequately to consider the evidence and arguments bearing upon the issues of retainer, duty of care, fiduciary duty, breach of duty, causation and damage, and to give adequate reasons for decision on those issues

1. Mr Boyd did not identify any particular findings in respect of which her Honour's consideration of the evidence was said to be inadequate or where her Honour's reasons were said to be inadequate, other than insofar as the earlier grounds of appeal made reference to particular findings. In essence, the complaint seems to have been that her Honour did not accept Mr Cooper's case as to the existence of the retainer and breach of the duties that it is said would have flowed from such a retainer.

1. Much weight was placed by Mr Boyd on the reference in the 19 September 2003 letter to a trust in favour of Mr and Mrs Cooper in respect of the shares which Mrs Lockrey held in Blamathon. Such a statement is inconsistent with the existence of a then existing trust in favour of Mr Cooper as the sole beneficiary of those shares of the kind Mr Cooper contended had, or was to have, arisen out of the conversations or events in 2002 relating to the purchase of the Bells Line of Road property. On one version of the case put for Mr Cooper at the hearing, the beneficial interest in the Blamathon shares already reposed in him as at September 2003. If so, it would not have been open to Mrs Lockrey unilaterally at that time to vary the trust pursuant to which she held those shares.

1. As to the complaint based on the adequacy of reasons, in Mifsud v Campbell (1991) 21 NSWLR 725, Samuels JA said (at p 728):

... It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her.

1. In the present case, her Honour set out in detail the factual background to the dispute, the relevant issues and applicable law, and her reasons for the decisions reached. Her Honour's view as to the reliability of Mr Cooper's evidence, and her preference for the evidence of Mr Winter in relation to the January and June 2002 conversations, were explained by reference to inconsistencies in the various versions of Mr Cooper's evidence and inconsistencies with contemporaneous documents ([96]) (Red 58). No error has been shown in that regard. I am not persuaded that her Honour erred as contended in Ground 11.

Conclusion

1. For the reasons above I would dismiss the appeal with costs.

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Decision last updated: 13 August 2013