Dewar v Ollier

Case [2020] WASCA 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DEWAR -v- OLLIER [2020] WASCA 25

CORAM:   BEECH JA

VAUGHAN JA

ARCHER J

HEARD:   12 FEBRUARY 2020

DELIVERED          :   28 FEBRUARY 2020

FILE NO/S:   CACV 76 of 2018

BETWEEN:   CORINNA EVANGELINE DEWAR

Appellant

AND

SEBASTIEN OLLIER

First Respondent

ATNAM PTY LTD

Second Respondent

ANDREW JAMES WALKER

Third Respondent

ANDTRAC PTY LTD

Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   TOTTLE J

Citation: DEWAR -v- OLLIER [2018] WASC 212

File Number            :   CIV 1803 of 2015


Catchwords:

Appeals - Findings of fact based partly on credibility - Whether appellable error demonstrated - Whether judge erred in finding no breach of fiduciary duty and no unconscionable conduct

Limitation of actions - Whether claims statute‑barred - Whether claims 'founded on a deed' for limitation purposes - Whether any and if so which limitation period applicable to claim of breach of fiduciary duty

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 12CB, s 12GF
Limitation Act 2005 (WA), s 13, s 18, s 27

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : In person
First Respondent : A J Musikanth SC & J C Van Der Walt
Second Respondent : C S Silver
Third Respondent : C S Silver
Fourth Respondent : C S Silver

Solicitors:

Appellant : In person
First Respondent : Jackson McDonald
Second Respondent : Chad Silver & Associates
Third Respondent : Chad Silver & Associates
Fourth Respondent : Chad Silver & Associates

Case(s) referred to in decision(s):

Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1

Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 93 ALJR 743

Belan v Casey [2003] NSWSC 159; (2003) 57 NSWLR 670

Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2

Child and Adolescent Health Service v Mabior [2019] WASCA 151

Clay v Clay [2001] HCA 9; (2001) 202 CLR 410

Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91

Collard v The State of Western Australia [2013] WASC 455; (2013) 47 WAR 1

Dewar v Ollier [2018] WASC 212

Gerace v Auzhair Supplies Pty Ltd [2014] NSWCA 181; (2014) 87 NSWLR 435

Hewitt v Henderson [2006] WASCA 233

Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113

Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392

Knox v Gye (1872) LR 5 HL 656

Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118; (2018) 334 FLR 9

Lovell v Western Australian Police Union of Workers [2009] WASCA 34

Mayne v Public Trustee [1945] HCA 38; (1945) 70 CLR 395

Netglory Pty Ltd v Caratti [2013] WASC 364

Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187

R v McNeil [1922] HCA 33; (1922) 31 CLR 76

Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223

Continue reading Dewar v Ollier

Sign in free to access the full text

Details
AGLC
Dewar v Ollier [2020] WASCA 25
Case
[2020] WASCA 25
Decision Date

CaseChat Overview and Summary

Dewar v Ollier was an appeal against the primary judge's decision in the Supreme Court of New South Wales, where the appellant, Ms Dewar, sought to challenge the findings of fact and the conclusions reached by the primary judge regarding claims of breach of fiduciary duty and unconscionable conduct. The primary judge had dismissed Ms Dewar's claims as statute-barred and found no breach of fiduciary duty or unconscionable conduct on the part of the respondent, Mr Ollier. Ms Dewar appealed the decision, arguing that the primary judge erred in his findings of fact, which were partly based on credibility assessments, and that the claims were not statute-barred. The legal issues before the court were whether the primary judge demonstrated an error in his findings of fact, whether he erred in concluding that there was no breach of fiduciary duty or unconscionable conduct, and whether the claims were statute-barred.

The court found that the primary judge had not erred in his findings of fact, as the appeal did not demonstrate any error that warranted interference. The primary judge's findings were supported by the evidence and the court could not say that the primary judge had failed to take into account matters that ought to have been considered or had made an error in assessing the credibility of the witnesses. The court also found that there was no breach of fiduciary duty or unconscionable conduct on the part of Mr Ollier, as Ms Dewar had not established that she relied on his representation or assurance that the loan was suitable for her circumstances. Furthermore, the court held that the claims were statute-barred as they were 'founded on a deed' for limitation purposes, and the applicable limitation period of six years had expired.

In conclusion, the appeal was dismissed with costs. The primary judge's findings of fact were upheld, and it was found that there was no breach of fiduciary duty or unconscionable conduct on the part of Mr Ollier. The claims were deemed statute-barred, and the court found that the applicable limitation period of six years had expired. The orders of the primary judge were affirmed, and the appeal was dismissed with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The following declaratory statements appeared above Ms Dewar's signature:[47][47] Primary reasons [140]; GAB 190.3.Declaration of Financial PositionI/My/We/Our (being Individual, Individual Trust, Company, or Company Trust) certify warrant and represent to you that:(a)I am/we are aware of our financial obligations under my/our proposed loan with you;(b)I/we have declared all details of my/our income in Section 4 below, which is a true and accurate representation of my/our financial position. (*Not required for Unregulated Fastdoc 70)(c)I am/we are satisfied, and for Company and/or Company Trustee applicants have resolved at a duly held board meeting, that our obligations to you will not adversely impact on our ability to meet all my/our other financial obligations (including living expenses) as and when they fall due;(d)I/we confirm that I/we can comfortably afford all repayments resulting from this loan, without incurring substantial financial hardship and;(e)I/we are not relying on you to verify or review my/our financial position(f)Where required, my/our Business Activity Statements have been lodged with the Australian Tax office on time and are up to date.(g)For Trustee applicants - The declarant has been properly appointed and remains entitled to act as Trustee of the Trust(h)For Company applicants - I am a director of the Company(i)For Company and Company Trustee applicants, - that the Company or Trustee, at a duly convened board meeting, resolved that the Directors or Trustee submit an application on behalf of the Company/Trustee for the proposed loan.I/We acknowledge that you are relying on this statement in considering whether or not to approve my/our loan application.(emphasis in original) The Record of Interview identified Ms Dewar as the borrower and stated:[48]I have interviewed the borrower/guarantor named above and verified the following information contained within the loan application form:Date of Interview 20/11/07(emphasis in original)Mr Walker signed the record of interview. The primary judge rejected Ms Dewar's allegation at trial that Mr Walker was not at the interview.[49] The primary judge found that, at the time Ms Dewar signed the documents comprising the application, she was confident about the state of her business and thought that she could afford repayments of about $500 per week.[50] Further, Ms Dewar was not relying on a representation or assurance from Mr Ollier that a loan in the amount of $292,000 was suitable for her circumstances or that she could afford the repayments for a loan in that amount.[51] The judge was also not satisfied that, as she claimed at trial, Ms Dewar did not understand that the 'equity release' portion of the loan funds was a loan.[52] On 22 November 2007, the Wholesale Funds mortgage loan application was submitted. The loan application documents were accompanied by a document entitled 'Mortgage Loan Summary'. The Mortgage Loan Summary was a two-page document with a number of headings. Next to each heading was a small amount of information, inserted by Mr Ollier.[53] Underneath the details of the mortgagor and mortgagee, the following headings (and corresponding information) appeared:[54][53] ts 510.[54] GAB 173.LOAN AMOUNTS: $266 000LOAN TERM: 30 yearsLOAN PACKAGE: No doc standard variable P&IINTEREST RATE: 8.79%REPAYMENTS (P/M): Approximately $2100SECURITY:17 Mint Circuit Banksia Grove WA 60311st R/Mortgage over:Total M/V $: $380 000Total LVR %: 70%PURPOSE:Refinance of existing loan with Keystart and purchase of the remaining portion of the property that belongs to the department of housing and worksINCOME/SERVICIBILITY: Under the no-doc criteria, Corinna did not disclose her income