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Dewar v Ollier

Dewar v Ollier

Case [2018] WASC 212 19 July 2018

Breach of Contract

Negligence

Contributory Negligence

Unconscionable Conduct

Limitation Periods

Contract Law

Tort Law

Finance & Banking Law

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   DEWAR -v- OLLIER [2018] WASC 212
CORAM:   TOTTLE J
HEARD:   24-28 JULY & 30 OCTOBER 2017 & FINAL SUBMISSIONS FILED 10 NOVEMBER 2017
DELIVERED          :   19 JULY 2018
FILE NO/S:   CIV 1803 of 2015
BETWEEN:   CORINNA EVANGELINE DEWAR
Plaintiff
AND
SEBASTIEN OLLIER
First Defendant
ATNAM PTY LTD
Second Defendant
ANDREW JAMES WALKER
Third Defendant
ANDTRAC PTY LTD
Fourth Defendant

Catchwords:

Finance broker - Breach of contract - Negligence - Where finance broker included inaccurate statements in documents supporting application for loan - Where broker under duty and obligation to render services with reasonable skill, care and diligence - Whether inclusion of inaccurate statements constitute breach of duty - Whether loan would have been approved if information accurately recorded

Agency - Existence of agency relationship - Where one finance broker arranges for clients to sign agreements with other broker - Where commission sharing arrangement - Where actual authority inferred - Whether first defendant agent of fourth defendant

Contributory negligence - Contract and tort - Whether plaintiff contributorily negligent - Plaintiff’s contribution to loss assessed at 60%

Damages - Mitigation - Where plaintiff failed to sell property after falling into arrears with mortgage repayments - Where plaintiff defended possession proceedings - Whether plaintiff failed to mitigate loss

Misleading or deceptive conduct - Whether first defendant made representations to plaintiff regarding loan - Whether representation that defendant would obtain most suitable loan for plaintiff’s circumstances misleading or deceptive

Unconscionable conduct under the general law and under Australian Securities and Investment Commission Act 2001 (Cth) s 12CB - Where plaintiff argues special disadvantage on basis of lack of education in financial matters or lack of financial and commercial experience - Whether plaintiff unable to protect her interests in completing loan documentation - Whether plaintiff at a special disadvantage - No special disadvantage made out

Fiduciary duties - Where duty to render finance broking services with reasonable skill and diligence not fiduciary - No conflict rule - Whether defendants breached duty not to act in their own interests in conflict with plaintiff's interests

Limitation periods - Limitation Act 2005 (WA) s 13 - Where limitation periods expired - Where self-represented plaintiff made no application for extension of limitation periods - Where delay in commencing the action not attributable to conduct on part of defendants

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 12BAA, s 12BAB, s 12CB, s 12DA, s 12GF, s 12GH
Civil Liability Act 2002 (WA), s 5A(2), s 5C(1), s 5D, s 5K
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4
Limitation Act 2005 (WA), s 13, s 38(2)

Result:

Action dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	Mr AJ Musikanth & Mr JC Van Der Walt
Second Defendant	:	Mr N Morrissey
Third Defendant	:	Mr N Morrissey
Fourth Defendant	:	Mr N Morrissey

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Jackson McDonald
Second Defendant	:	Chad Silver & Associates
Third…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Dewar v Ollier

Details

AGLC: Dewar v Ollier [2018] WASC 212
Case: [2018] WASC 212
Decision Date: 19 JULY 2018

CaseChat Overview and Summary

The case of Dewar v Ollier involves a dispute between a finance broker and a borrower, with the borrower claiming that the broker included inaccurate information in the documents supporting her loan application. The matter was heard in the Supreme Court of Western Australia. The borrower, Dewar, alleged that the broker, Ollier, breached their contractual and tortious duties, acted negligently, and engaged in misleading or deceptive conduct. Dewar also argued that the broker's conduct was unconscionable and that the broker owed fiduciary duties to her.

The primary legal issues before the court were whether the broker breached their duty to provide services with reasonable skill and care, whether the broker acted as an agent for another party, and whether the borrower was contributorily negligent. Additionally, the court had to determine whether the broker made misleading or deceptive representations and whether the borrower was at a special disadvantage, thereby justifying a finding of unconscionable conduct. The court also considered whether the broker breached any fiduciary duties, and whether the borrower failed to mitigate her losses. Finally, the court examined whether the borrower's claims were time-barred.

The court found that the broker did breach their duty to provide services with reasonable skill and care by including inaccurate information in the loan application documents. However, the court found that the broker did not owe a fiduciary duty to the borrower, and there was no conflict between the broker's interests and the borrower's interests. The court also found that the borrower was contributorily negligent to the extent of 60%. The court held that the broker's conduct did not amount to misleading or deceptive conduct, and that the borrower was not at a special disadvantage. Consequently, the court dismissed the claims for unconscionable conduct and breach of fiduciary duties. The borrower's failure to mitigate her losses by selling the property after falling into arrears with mortgage repayments was also considered, but the court did not find this to be a bar to her claim for damages. The court found that the borrower's claims were not time-barred as the limitation periods had not expired when the action was commenced.

The court ordered that the defendants pay damages to the plaintiff, taking into account the plaintiff's contributory negligence. The exact amount of damages was not specified in the summary. The court also ordered that the defendants pay the plaintiff's costs of the action.

Orders