Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd - [2017] FCAFC 141

FEDERAL COURT OF AUSTRALIA
Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141

Appeal from: Investa Properties Pty Ltd v Nankervis (No 7) [2015] FCA 1004; (2015) 333 ALR 193

File numbers: QUD 923 of 2015
QUD 924 of 2015
QUD 925 of 2015
QUD 1002 of 2015

Judges: DOWSETT, GREENWOOD AND WHITE JJ

Date of judgment: 1 September 2017

Catchwords:
EQUITY – consideration of the principles deriving from the authorities and extensive academic writing, to be applied in determining whether in all the circumstances a person or entity owes fiduciary obligations to another – consideration of the coherent body of law developed by Equity in identifying “certain and distinct” obligations which define their own “fiduciary” for their own respective purposes – consideration of whether, upon analysis of the facts, a person or entity has assumed obligations to another or undertaken to act in the interests of another giving rise to fiduciary obligations owed to that other – consideration of the content of the duties owed in all the relevant circumstances – consideration of those matters in the context (among other contexts) of contended obligations owed by an employee of one company within a group of companies, to another asset owning company within the group, not the employer of the employee – consideration of whether a person or entity owing fiduciary obligations to another has a continuing obligation, beyond the termination of the relationship, to make disclosures required to be made to that other as an aspect of the content of the fiduciary obligations assumed by that person

CORPORATIONS – consideration of whether the knowledge of a particular senior employee of a company providing real estate agency services is to be regarded as knowledge of the company – consideration of whether the company had a duty of disclosure of the relevant matters falling within the knowledge of the employee – consideration of the employee’s duty of disclosure – consideration of the company’s duty of disclosure having regard to its state of knowledge imputed to it

PRACTICE AND PROCEDURE – consideration of the remedies arising out of contended breaches of fiduciary duty and other contended causes of action – consideration of the need to frame the relevant declarations so as to identify the relevant conduct with some precision – consideration of questions of remittal of particular matters to the primary Judge – consideration of matters to be decided by an appeal court in circumstances where that court has taken a different view on factual questions to that of the primary Judge – consideration of the observations of the High Court in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550 at [43]

CONTRACTS – consideration of the relationship between contractual obligations and circumstances giving rise to fiduciary obligations

REAL PROPERTY – consideration of the relationship between a real property asset owning entity within a group of companies carrying on property development projects and an entity appointed to provide real estate agency services to entities within the group – consideration of whether a senior representative of the real estate agent entity owed fiduciary obligations and a duty of disclosure to the asset owning entity – consideration of whether the knowledge of relevant matters held by a senior employee is to be knowledge imputed or attributed to the real estate agent entity – consideration of the duty of disclosure of the real estate agent entity – consideration of whether information disclosed to a particular employee of one entity within the group of companies carrying on property development was, in all the circumstances, a discharge of the fiduciary obligation of disclosure

Legislation:
Corporations Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth)

Property Agents and Motor Dealers Act 2000 (Qld)

Cases cited:
ABN AMRO Bank NV v Bathurst Regional Council (2014) 309 ALR 445

Anying Group Pty Ltd v Wang [2012] FCA 702

Australian Securities Commission v AS Nominees Limited and Others (1995) 62 FCR 504

Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) (2007) 160 FCR 35

Barnes v Addy (1874) LR 9 Ch App 244

Beach Petroleum NL v Johnson (1993) 43 FCR 1

Blair v Martin [1929] NZLR 225

Bristol and West Building Society v Mothew [1998] Ch. 1

Carr v Finance Corporation of Australia Ltd(No 1) (1981) 147 CLR 246

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337

Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767

Conway v Raitu [2005] EWCA Civ 1302; [2006] 1 All ER 571

Diamantides v JP Morgan Chase Bank [2005] EWCA Civ 1612

Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 306 ALR 25

Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

John Alexander’s Clubs v White City (2010) 241 CLR 1

Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421

Lifeplan Australia Friendly Society Ltd v Woff [2016] FCA 248

Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited [2017] FCAFC 74

Longstaff v Birtles [2001] EWCA Civ 1219; [2002] 1 WLR 470

Manildra Laboratories Pty Limited v Campbell [2009] NSWSC 987

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

NZI Securities Ltd v Poignard (1994) 123 ALR 11

Powell & Thomas v Evan Jones & Co [1905] 1 KB 11

Re Coomber [1911] 1 Ch 723

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550

Tag Pacific Pty Ltd v McSweeney (1992) 34 FCR 438

Tate v Williamson (1866) 2 Ch. App. 55 (L.C.)

Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

Yong Internationals Pty Ltd v Gibbs [2011] QCA 161

Date of hearing: 1, 2 and 3 March 2016

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 421

In QUD 923 of 2015:

Counsel for the Appellant: Mr A Collins and Mr J Trost

Solicitor for the Appellant: Carter Newell Lawyers

Counsel for the First Respondent: Mr D Murr SC and Ms M Painter QC

Solicitor for the First Respondent: Lander & Rogers Lawyers

Counsel for the Second Respondent: Mr K Barlow QC with Ms B O’Brien

Solicitor for the Second Respondent: Warlow Scott Lawyers

In QUD 924 of 2015:

Counsel for the First and Second Appellants and First Cross‑Respondent: Mr D Murr SC and Ms M Painter QC

Solicitor for the First and Second Appellants and First Cross‑Respondent: Lander & Rogers Lawyers

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondent and Cross‑Appellant: Mr K Barlow QC with Ms B O’Brien

Solicitor for the Second Respondent and Cross‑Appellant: Warlow Scott Lawyers

Counsel for the Third Respondent and Second Cross‑Respondent: Mr A Collins and Mr J Trost

Solicitor for the Third Respondent and Second Cross‑Respondent: Carter Newell Lawyers

In QUD 925 of 2015

Counsel for the First and Second Appellants: Mr D Murr SC and Ms M Painter QC

Solicitor for the First and Second Appellants: Lander & Rogers Lawyers

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondent: Mr K Barlow QC with Ms B O’Brien

Solicitor for the Second Respondent: Warlow Scott Lawyers

Counsel for the Third Respondent: Mr A Collins and Mr J Trost

Solicitor for the Third Respondent: Carter Newell Lawyers

In QUD 1002 of 2015:

Counsel for the Appellant: Mr K Barlow QC with Ms B O’Brien

Solicitor for the Appellant: Warlow Scott Lawyers

Counsel for the First and Second Respondents: Mr A Collins and Mr J Trost

Solicitor for the First and Second Respondents: Carter Newell Lawyers

ORDERS

QUD 923 of 2015

BETWEEN:
OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230

Appellant

AND:
INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390

First Respondent

ADAM KIMBERLY BARCLAY

Second Respondent

QUD 924 of 2015

BETWEEN:
INVESTA PROPERTIES PTY LTD ACN 084 407 241

First Appellant

INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390
Second Appellant

AND:
ASHLEY COLIN NANKERVIS

First Respondent

ADAM KIMBERLY BARCLAY
Second Respondent

OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230
Third Respondent

AND BETWEEN: ADAM KIMBERLY BARCLAY
Cross-Appellant

AND: INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390
First Cross‑Respondent

OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230
Second Cross‑Respondent

QUD 925 of 2015

BETWEEN:
INVESTA PROPERTIES PTY LTD ACN 084 407 241

First Appellant

INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390
Second Appellant

AND:
ASHLEY COLIN NANKERVIS

First Respondent

ADAM KIMBERLY BARCLAY

Second Respondent

OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230
Third Respondent

QUD 1002 of 2015

BETWEEN:
ADAM KIMBERLY BARCLAY

Appellant

AND: OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230
First Respondent

VERO INSURANCE LIMITED ABN 48 005 297 807
Second Respondent

JUDGES:

DOWSETT, GREENWOOD AND WHITE JJ

DATE OF ORDER:

1 SEPTEMBER 2017

THE COURT ORDERS THAT:
1.Investa Properties Pty Ltd and Investa Residential Group Pty Ltd (the “Investa entities”) lodge with the Court and serve on Ashley Colin Nankervis (“Mr Nankervis”), Adam Kimberly Barclay (“Mr Barclay”), Oliver Hume South East Queensland Pty Ltd (“Oliver Hume”) and Vero Insurance Limited (“Vero”) within

two weeks proposed declarations and orders reflecting the principles described at [409] of the reasons for judgment published today and otherwise giving effect to the reasons.
2.Mr Nankervis, Mr Barclay, Oliver Hume and Vero within seven days thereafter, lodge with the Court and serve on the Investa entities their proposed declarations and orders.
3.The declarations and orders to be made by the Court be determined on the papers, subject to Order 4.
4.Should any party wish to be heard orally on any aspect of the declarations and orders to be made, the Court is to be so notified and the proceedings will be listed for further hearing on those matters.
5.The Investa entities file and serve within two weeks submissions as to the disposition of all issues in relation to the costs of and incidental to the appeal and any proposed costs of and incidental to the primary proceeding.
6.Mr Nankervis, Mr Barclay, Oliver Hume and Vero file and serve, within seven days thereafter, their submissions on the issue of costs referred to in Order 5.
7.Costs are reserved.
8.The parties have liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
DOWSETT J:
INTRODUCTION

In these reasons, I shall refer to the various parties as follows:
·Investa Properties Pty Ltd, “Investa Properties”;
·Investa Residential Group Pty Ltd, “Investa Residential”;
·Investa Properties and Investa Residential collectively, the “appellants”;
·Adam Kimberly Barclay, “Mr Barclay”;
·Ashley Colin Nankervis, “Mr Nankervis”;
·Oliver Hume South East Queensland Pty Ltd, “Oliver Hume”; and
·Vero Insurance Ltd, “Vero”.
These appeals arise out of the sale of two blocks of land near Ipswich in Queensland. The first, (Lot 170), was sold in June 2009 for $1,454,545. The second, (Lot 191), was sold in June 2010 for $290,000. In each case, the vendor was Investa Residential, a wholly owned subsidiary of Investa Properties. Investa Properties is, in turn, a wholly owned subsidiary of Investa Property Group Holdings Pty Ltd (“Holdings”). The appellants are members of a group of companies owned by Holdings and described in the pleadings as “Investa Property Group”. Within that group the appellants are members of a sub‑group known as “Investa Land”.
The proceedings at first instance concerned claims by the appellants that each of Lots 170 and 191 had been sold at less than its true value, and that such sales were the results of the conduct of Mr Barclay, Mr Nankervis and/or Oliver Hume. The appellants sought relief against Mr Nankervis a former employee of Investa Properties, Mr Barclay, a real estate agent and Oliver Hume, also a real estate agent. Mr Barclay was, at relevant times, an employee and director of Oliver Hume. The appellants had also sought relief against another party, Mr Long, a development manager formerly employed by Investa Properties. Proceedings against him were settled prior to trial. I need not say anything more about those proceedings.
The Investa Property Group was engaged in land development. Lots 170 and 191 formed part of a residential property development known as “Brentwood”. Lot 170 was sometimes referred to as the “Fossil Site” and sometimes, as “Brittains Rd”.
Until 26 May 2010, Mr Nankervis was employed by Investa Properties as its Senior Development Manager. Both Mr Barclay and Oliver Hume were licensed as real estate agents, under the now‑repealed Property Agents and Motor Dealers Act 2000 (Qld) (the “PAMD Act”). Until 14 April 2011, Mr Barclay was an employee and director of Oliver Hume. Oliver Hume and Mr Barclay were involved in the sale of both lots.
LOT 170
Lot 170 comprised 7.25 ha of mostly steep land. The appellants pleaded that, on 16 July 2008, Investa Residential offered commission to Oliver Hume for the in globo sale of Lot 170. Alternatively, they pleaded that on 27 November 2008 either or both of them offered a commission for the in globo sale of that lot. On 20 February 2009, Investa Residential entered into a deed of put and call (the “Lot 170 option”) in favour of Two Eight Two Nine Pty Ltd (“TETN”) for an exercise price of $1,454,545 plus goods and services tax (“GST”). The sole shareholder of TETN was Mr David Tonuri (“Mr Tonuri”). In June 2009 TETN exercised the Lot 170 option. On 25 June 2009 the parties executed a contract of sale. Settlement occurred on 30 July 2009. The appellants claimed that at the time, the true value of Lot 170 was $4 million. They claimed that at some time before 20 January 2009, Mr Nankervis and Mr Barclay had entered into an agreement with Mr Tonuri (the “Tonuri agreement”), pursuant to which they would participate in, and derive profits from, the sale of Lot 170 to him or his nominee, and from the subsequent development of the lot. The appellants claimed that a conflict of interest had thereby arisen, and that, as a result, the appellants were not informed of material matters affecting the grant of the Lot 170 option.
LOT 191
Lot 191 comprised 1,079 m². On 16 July 2009, Investa Residential appointed Oliver Hume as its exclusive agent to sell a number of allotments in the Brentwood development, including Lot 191. The appointment complied with the requirements of the PAMD Act. On 23 December 2009, Investa Residential entered into a deed of put and call (the “Lot 191 option”). It entitled Queensland Property Centre Pty Ltd (“QPC”) or its nominee to purchase the lot at an exercise price of $195,000 plus GST. At that time, QPC was controlled by Mr Barclay’s wife (“Ms Barclay”). By a contract executed on 25 June 2010, Investa Residential sold Lot 191 to Spencer Projects Pty Ltd (“Spencer Projects”) for a contract price of $290,000. Settlement occurred on 28 July 2010. On settlement, Investa Residential retained $190,497.14 from the sale price and paid $95,000 to QPC. The appellants pleaded, and Mr Barclay and Oliver Hume admitted, that at the time of the contract, Ms Barclay was the sole shareholder and director of Spencer Projects. The trial Judge so found. However, on appeal, it appears to have been accepted by all sides that, at all material times, the sole shareholder and director was Ms Barclay’s daughter, Ms Jaide Spencer Crosbie (“Ms Crosbie”). I shall return to those matters.
The appellants alleged that, before November 2009, both Mr Nankervis and Mr Barclay had taken steps to subdivide Lot 191 without disclosing that fact to them, and that they had also failed to inform them of Ms Barclay’s interest in QPC and her alleged interest in Spencer Projects. The connection between the two grounds of complaint is obvious. In general, they seem to have been so treated. Although it seems that the Lot 191 option was extended from time to time, there is no direct evidence that the sale to Spencer Projects was the result of any exercise by QPC of its rights pursuant to that option. However, in the end, it may be that neither that issue, nor that concerning the ownership or control of Spencer Projects matters much for present purposes.
THE CLAIMS AT TRIAL
The appellants sought relief against the respondents on multiple bases.
In relation to both Lots 170 and 191, the appellants alleged that each of Mr Nankervis, Mr Barclay and Oliver Hume had breached fiduciary duties owed to them, and that Mr Nankervis had contravened each of ss 182 and 183 of the Corporations Act 2001 (Cth) (the “Corporations Act”). Section 182 proscribes the use by an employee of a corporation, of his or her position in order to gain an advantage for him‑ or herself, or to cause detriment to the corporation. Section 183 proscribes the use by such an employee of information which he or she has acquired as an employee, to gain an advantage for him‑ or herself, or to cause detriment to the corporation. Although the appellants initially sought an account of profits made by each of Mr Nankervis, Mr Barclay and Oliver Hume by reason of the alleged breaches of fiduciary duty, during the trial, they abandoned those claims and instead sought equitable compensation. In respect of Mr Nankervis’s alleged contraventions of ss 182 and 183, the appellants sought compensation pursuant to s 1317H of the Corporations Act.
The appellants brought a third claim against Mr Nankervis, arising out of the relocation of a sales office (owned by Investa Residential) from the Brentwood site to a site owned by Mr Tonuri. The trial Judge dismissed that claim. It is not the subject of any appeal. I need not discuss it further.
Save that Oliver Hume did not cross‑claim against Mr Nankervis, each of the respondents made cross‑claims against the other respondents. Mr Barclay also sought an order that Vero Insurance Ltd (“Vero”) indemnify him pursuant to a policy of insurance taken out by Oliver Hume.
THE FIRST INSTANCE DECISION
The trial Judge found, in relation to Lots 170 and 191, that Mr Nankervis:
·had breached fiduciary duties owed to Investa Properties as his employer; and
·as an employee had breached ss 182 and 183 of the Corporations Act in relation to Lot 170.
Her Honour dismissed Investa Residential’s claim that Mr Nankervis owed it fiduciary duties in relation to Lots 170 and 191.
The trial Judge also found that:
·both Mr Barclay and Oliver Hume had breached fiduciary duties owed to Investa Residential in relation to Lot 191;
·neither Mr Barclay nor Oliver Hume owed any fiduciary duty to Investa Properties in relation to either Lot 170 or 191; and
·neither Mr Barclay nor Oliver Hume owed any fiduciary duty to Investa Residential in relation to Lot 170.

The trial Judge further found that:
·Lot 170 had not been sold for less than its market value; and
·the market value of Lot 191, at the time at which Investa Residential entered into the Lot 191 option (23 December 2009), had been $290,000, $95,000 more than the option exercise price.
As to the various cross‑claims, her Honour:
·dismissed the claim by Mr Nankervis to equitable contribution from Mr Barclay and Oliver Hume in respect of the breaches of fiduciary duty found against him;
·dismissed the claim by Mr Barclay to equitable contribution from Mr Nankervis in respect of the breaches of fiduciary duty found against him;
·dismissed the claim by Mr Barclay to indemnity from Oliver Hume in respect of any liability found against him;
·dismissed the claim by Mr Barclay to indemnity from Vero under a policy of insurance; and
·upheld Oliver Hume’s claim against Mr Barclay to the effect that his conduct in relation to Lot 191 was in breach of duties owed to it.
The trial Judge made various declarations concerning the alleged breaches and dismissed all cross‑claims other than that by Oliver Hume against Mr Barclay. In respect of that claim, the trial Judge made an order that it “be upheld”. Her Honour then adjourned the matter for consideration of other remedies to which the appellants and Oliver Hume might be entitled. Following the lodgment of the present appeals and cross‑appeals, the trial Judge ordered that the determination of those matters be “stood over” pending their determination.
THE APPEALS AND APPLICATIONS
The appellants, Mr Barclay and Oliver Hume appeal or cross‑appeal (or seek leave to do so), from the first instance judgment. Mr Nankervis has not appealed against any of the declarations or orders which concern him. However he resists the making of any further orders against him. In the current proceedings:
·the appellants appeal against the finding that neither Oliver Hume nor Mr Barclay owed fiduciary duties to either of them in respect of Lot 170;
·Investa Residential appeals against the finding that Mr Nankervis did not owe fiduciary duties to it in relation to Lot 191;
·against Mr Nankervis, the appellants apply for an extension of time in which to apply for leave to appeal against the trial Judge’s finding that the value of Lot 170, as at 25 June 2009, did not exceed $1,454,545;
·each of Oliver Hume and Mr Barclay appeals against the finding that each breached fiduciary duties owed to Investa Residential in respect of Lot 191;
·Oliver Hume appeals against the finding that it is liable for Mr Barclay’s conduct;
·each of Oliver Hume and Mr Barclay appeals against the trial Judge’s finding that, as at 25 June 2010, the market value of Lot 191 was $290,000; and
·Mr Barclay applies for an extension of time in which to appeal against the dismissal of his claims to be indemnified by Oliver Hume and Vero, and the upholding of the claim by Oliver Hume against him.
At the commencement of the hearing of the appeal, the Court suggested that the judgment at first instance should be regarded as interlocutory, on the basis that it did not determine finally the rights of the parties in all respects: Carr v Finance Corporation of Australia Ltd(No 1) (1981) 147 CLR 246. If the judgment is interlocutory, then leave to appeal is required: Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”) s 24(1A). The parties had taken the view that those parts of the trial Judge’s judgment and orders which had dismissed claims or cross‑claims, as the case may be, were final, whereas her Honour’s conclusions concerning the value of Lots 170 and 191 at the time of their sales were interlocutory, in that they related to the question of relief, which question her Honour has not finally determined.
The Court pointed out that there is authority to the effect that, when a judgment comprises some orders which are final in nature, and some which are interlocutory, all are interlocutory for the purposes of s 24(1A): Anying Group Pty Ltd v Wang [2012] FCA 702 at [8]. There is also a line of authorities, commencing with Tag Pacific Pty Ltd v McSweeney (1992) 34 FCR 438 in which it has been held that a judgment determining issues of liability in advance of issues of quantum is not interlocutory. The correctness of that approach has been doubted by two Full Courts: Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 at 431 and NZI Securities Ltd v Poignard (1994) 123 ALR 11 at [41]. It may also be that Tag Pacific is inconsistent with the decision of the High Court in Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767.
In these circumstances, the parties proposed that each of the notices of appeal be regarded as an application for leave to appeal, that, where necessary, the time for the filing of any application for leave to appeal be extended, that leave be granted, and that the hearing in each matter proceed by way of appeal. The Court made orders by consent, giving effect to that pragmatic approach, without considering further the character of the judgment at first instance for the purposes of s 24(1A).
As at trial, Mr Nankervis was unrepresented on the appeal. At the commencement of the appeal hearing, he informed the Court that he opposed the making of any orders which concerned him but did not wish to make any further submissions. He sought leave to be excused from further attendance at the hearing of the appeal. The Court granted that leave. Mr Nankervis took no further part in the hearing.
THE ISSUES ON APPEAL
As best I can tell, the issues for determination identified in the various notices of appeal are as follows:
(a)whether the trial Judge was correct in finding that Oliver Hume and Mr Barclay did not owe fiduciary duties to either Investa Properties or Investa Residential in respect of Lot 170, on the basis that neither had been appointed as a real estate agent in respect of that lot in the manner required by the PAMD Act, and because the relationships were not otherwise fiduciary in nature, and whether her Honour’s reasons were sufficient (appellants: grounds 1 and 3);
(b)whether the trial Judge should have found that Mr Nankervis owed fiduciary duties to Investa Residential in respect of Lots 170 and 191 and breached such duties, and whether her Honour’s reasons concerning this matter were sufficient (appellants: ground 3);
(c)whether the trial Judge erred in finding that, as at 25 June 2010, Oliver Hume and Mr Barclay owed fiduciary duties to Investa Residential in respect of Lot 191 (Oliver Hume: grounds 1, 2 and 3; Mr Barclay: grounds 1, 2 and 3);
(d)if the trial Judge was correct in finding that a fiduciary relationship existed between Oliver Hume and Investa Residential in respect of Lot 191, whether her Honour nevertheless erred by:
(i)determining the content of the fiduciary obligation by reference to the PAMD Act (Oliver Hume: ground 4(a); Mr Barclay: ground 4(a));
(ii)failing to find that any such fiduciary obligation was limited to the disclosure of the interest which Mr Barclay’s wife held in QPC and Spencer Projects (Oliver Hume: ground 4(b); Mr Barclay: ground 4(b));
(iii)failing to find that the disclosure by Mr Barclay to Mr Nankervis of the interest held by Mr Barclay’s wife was a sufficient disclosure of such interest (Oliver Hume: ground 5; Mr Barclay: ground 5);
(e)whether the trial Judge erred in concluding that Oliver Hume’s liability to Investa Residential was to be determined by reference to whether Mr Barclay had Oliver Hume’s actual or apparent authority in relation to the provision of real estate services to Investa Residential, and that Mr Barclay’s conduct was within the scope of his actual or apparent authority (Oliver Hume: grounds 6, 7 and 8);
(f)whether the trial Judge should have found that, as Mr Barclay was not the controlling mind of Oliver Hume, it could not be vicariously liable for his actions (Oliver Hume: ground 8);
(g)whether the trial Judge should have found that Mr Barclay’s conduct in relation to Lot 191 was fraudulent, and without knowledge on the part of Oliver Hume, with the consequence that Oliver Hume should not have been found liable for such conduct (Oliver Hume: ground 9);
(h)whether the trial Judge should have found that Investa Residential did not, in any event, suffer a loss and, in particular, that the market value of Lot 191 was less than $290,000 (Oliver Hume: grounds 10 and 11; Mr Barclay: grounds 6 and 7);
(i)whether the trial Judge erred in making an order that Oliver Hume’s claim to be indemnified by Mr Barclay “be upheld” (Mr Barclay: ground 3);
(j)whether the trial Judge should have found that the market value of Lot 170 was more than $1,454,545 (appellants: grounds 1, 2 and 3);
(k)whether the trial Judge erred in finding that Mr Barclay was not entitled to be indemnified by Oliver Hume (Mr Barclay: ground 1); and
(l)whether the trial Judge erred in finding that Mr Barclay was not entitled to be indemnified by Vero (Mr Barclay: ground 2).
In the course of the hearing of the appeal, the parties appeared to refine some of these issues. The Court raised with the parties the competence of those parts of the appeal which challenged the trial Judge’s assessment of the values of Lots 170 and 191, pointing out that the right of appeal pursuant to s 24 of the Federal Court Act is against a “judgment, decree or order” and not against findings or reasons. No party has appealed, or sought leave to appeal, against an order to which such assessments related. Thus the appellate jurisdiction of the Court has not been invoked in respect of those matters. Counsel acknowledged that this was so. The difficulty may have been caused by the fact that during the conduct of the matter at first instance, there seems, from time to time, to have been a perception that the appellants’ case was based upon the alleged sale of each lot at an undervalue. However, as I understand the matter, such sales were the consequences of impugned conduct. For that reason, questions of valuation relate only to the quantification of the claimed compensation, and not to proof of any breach of duty. In the end, I do not understand any party to argue that the applications for leave to appeal on these issues raised matters which this Court could presently hear and determine. However, questions of relief remain for determination. The Court should adjourn those aspects of the appeal to a date to be fixed, after the resolution by the trial Judge of all outstanding issues in the case, including any arising out of the current appeals.
Some of the parties’ submissions went to the issue of causation of loss for which the appellants seek equitable compensation. These are also matters directly connected to the question of remedies, which matters the trial Judge has adjourned. It would be premature for this Court to express any views about those matters. I do not propose to do so. For these reasons, I shall not address issues (h) and (j) above.
It is not entirely clear whether Investa Residential persists in its appeal against her Honour’s finding that Mr Nankervis did not owe it fiduciary duties in relation to Lot 191. Ground 3 of the notice of appeal suggests that it appeals concerning both Lots 170 and 191. However, in its written submissions, at para 1.2 it seems to suggest that Lot 191 was the subject of proceedings at first instance but that, on appeal, it is only the subject of the respondents’ appeals. At paras 2.3‑2.5, the appellants make submissions concerning Lot 170 but not concerning Lot 191. At paras 4.6‑4.8, there is reference to Lot 191, but apparently for the purpose of criticizing the trial Judge’s reasoning concerning Lot 170. In the written submissions, there is no further reference to Lot 191, as it concerns Mr Nankervis, until para 8, headed “Conclusion”, where the appellants seek relief against Mr Nankervis in connection with that lot. The matter was addressed to some extent in oral submissions. For reasons which appear below, I have, in any event, concluded that Mr Nankervis owed no fiduciary duties to Investa Residential.
FURTHER BACKGROUND CIRCUMSTANCES
Within the Investa Property Group the functions of Investa Properties were:
·the employment of the staff of Investa Land in Queensland;
·the leasing of Investa Land’s offices;
·the provision of finance for the acquisition of land;
·the incorporation of subsidiaries to acquire and sell land;
·the implementation of policy decisions made by Holdings; and
·the making of managerial‑level decisions concerning the acquisition, development and sale of land.
Investa Residential owned residential developments and, at the direction of Investa Properties, was responsible for contracting with real estate agents in relation to the sale and marketing of land, including Lots 170 and 191.
The operations of Investa Property Group were managed by a “Group Executive” who, at relevant times, was Mr Jenkins. He had delegated authority from Holdings to approve submissions made by responsible units for the acquisition, sale or development of land. In some cases, depending upon the amount of money involved, he may have had to refer matters to a superior (the Chief Executive Officer) for decision.
As already noted, Investa Properties employed Mr Nankervis as a Senior Development Manager. His responsibilities included the preparation of financial and feasibility reports and the making of recommendations relevant to land development and sales. He was a member of the group referred to as the “Project Control Group”, which group dealt with the development and sale of Lots 170 and 191.
Investa Properties made the decision to purchase the land comprising the Brentwood development. It arranged the provision of $48 million to Investa Residential for that purpose. On 31 October 2003, Investa Residential entered into a contract to purchase the land for $48 million. Completion of the purchase occurred on 4 May 2007. In mid‑2008, Investa Properties decided to sell Lot 170 as a single lot, rather than to develop and market it as individual lots. The circumstances in which it made that decision are not presently material. I do not understand any of these matters to have been in dispute at the trial. Subject to one qualification, I infer that Investa Residential had no employees and made no decisions, but rather acted in accordance with directions from Investa Properties. I base this inference upon the scope of Investa Properties’ duties, and various assertions by the appellants in the statement of claim to the effect that Investa Residential acted in transactions at the direction of Investa Properties. This conclusion is relevant to my consideration of the assertion that Mr Nankervis, an employee of Investa Properties, owed fiduciary duties to Investa Residential. The qualification is that in at least one place, Mr Mark Waters is described as the “State Manager Queensland” of “Clarendon Residential Group”, perhaps a shorthand reference to Investa Residential, which company was previously known as Clarendon Residential Group Pty Ltd. The relevant document is annexure “CH-5” to the affidavit of Cameron Richard Holt filed on 6 December 2013. However that document makes it clear that Mr Waters required approval from higher authority for the proposed sale of Lot 170. Further, in para 1A(c) of the statement of claim it is pleaded that all staff in the Investa Property Group were employed by Investa Properties.
THE INCURRENCE OF FIDUCIARY OBLIGATIONS
Since the decision of the High Court in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, it has been accepted in this country that a fiduciary duty arises out of an undertaking, express or implied, by the person incurring such duty. At 68‑69, Gibbs CJ said:
The authorities contain much guidance as to the duties of one who is in a fiduciary relationship with another, but provide no comprehensive statement of the criteria by reference to which the existence of a fiduciary relationship may be established. The archetype of a fiduciary is of course the trustee, but it is recognized by the decisions of the courts that there are other classes of persons who normally stand in a fiduciary relationship to one another - e.g., partners, principal and agent, director and company, master and servant, solicitor and client, tenant-for-life and remainderman. There is no reason to suppose that these categories are closed. However, the difficulty is to suggest a test by which it may be determined whether a relationship, not within one of the accepted categories, is a fiduciary one.
In the present case McLelland J. said that there were two matters of importance in deciding when the court will recognize the existence of the relevant fiduciary duty. First, if one person is obliged, or undertakes, to act in relation to a particular matter in the interests of another and is entrusted with the power to affect those interests in a legal or practical sense, the situation is, in his opinion, analogous to a trust. Secondly, he said that the reason for the principle lies in the special vulnerability of those whose interests are entrusted to the power of another to the abuse of that power. The learned members of the Court of Appeal considered that the first of these statements needed a qualification which McLelland J. had intended to suggest, namely that the undertaking to act in the interests of another meant that the fiduciary undertook not to act in his own interests; they said that the principle is that "a fiduciary relationship exists where the facts of the case in hand establish that in a particular matter a person has undertaken to act in the interests of another and not in his own". They added that it is not inconsistent with this principle that a fiduciary may retain that character although he is entitled to have regard to his own interest in particular matters.
At 69, Gibbs CJ observed:
I doubt if it is fruitful to attempt to make a general statement of the circumstances in which a fiduciary relationship will be found to exist. Fiduciary relations are of different types, carrying different obligations ... and a test which might seem appropriate to determine whether a fiduciary relationship existed for one purpose might be quite inappropriate for another purpose.
At 72, his Honour said:
The test suggested by the Court of Appeal in the present case seems to me not inappropriate in the circumstances, although it must be remembered that any test can only be stated in the most general terms and that all the facts and circumstances must be carefully examined to see whether a fiduciary relationship exists ... .
More frequently quoted is the statement by Mason J at 96‑97 as follows:
Because distributor-manufacturer is not an established fiduciary relationship, it is important in the first instance to ascertain the characteristics which, according to tradition, identify a fiduciary relationship. As the courts have declined to define the concept, preferring instead to develop the law in a case by case approach, we have to distil the essence or the characteristics of the relationship from the illustrations which the judicial decisions provide. In so doing we must recognize that the categories of fiduciary relationships are not closed ... .
The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations ... trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions "for", "on behalf of", and "in the interests of" signify that the fiduciary acts in a "representative" character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.
It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed ... . Thus a mere sub‑contractor is not a fiduciary. Although his work may be described loosely as work which is to be carried out in the interests of the head contractor, the sub‑contractor cannot in any meaningful sense be said to exercise a power or discretion which places the head contractor in a position of vulnerability.
That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.

Some few years after the Hospital Products decision, the late Justice BH McPherson, then of the Queensland Court of Appeal, published a speculative analysis of it. In his article “Fiduciaries: Who Are They?” (1988) 72 ALJ 288, the author observed that the Hospital Products decision established that it was the undertaking or agreement, “to act for or on behalf of another person in the exercise of a power of discretion which will affect the interests of that other person in a legal or practical sense”, which gave rise to a fiduciary duty. Concerning such undertaking, the author observed:
A difficulty with the concept of "undertaking" in this context is that it clearly includes an implied or inferred, as well as an express, undertaking. If the courts consider that someone ought to be treated as a fiduciary for the particular purpose in hand, they will say that he has "undertaken" or agreed to act in the interests of another person. Does the errand boy really "undertake" or agree to act in the interests of another? It would be more accurate to say that he is instructed to act in the interests of another (and, because he is an employee, he does what he is told). We should take care not to start talking of "constructive undertakings", which is a notorious form of judicial self-deception.
The reference to the “errand boy” is to a well‑known observation by Fletcher Moulton LJ in Re Coomber [1911] 1 Ch 723 at 728. Later in these reasons I set out the relevant passage.
In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 540‑541 the Full Court applied the observations by Gibbs CJ and Mason J as to the need for an undertaking of the relevant nature, and then discussed other aspects of that case, concluding as follows:
In the end, an important question - if not the question - is whether, in the words of Professor Finn:
''the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement."
The expectation there identified presumably reciprocates the actual or implied undertaking referred to in Hospital Products.
In Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) (2007) 160 FCR 35 at [271]‑[274], Jacobson J applied the decisions in Hospital Products and in News Ltd. At [272]‑[273] his Honour said:
272 Apart from the established categories, perhaps the most than can be said is that a fiduciary relationship exists where a person has undertaken to act in the interests of another and not in his or her own interests but all of the facts and circumstances must be carefully examined to see whether the relationship is, in substance, fiduciary ... .
273 Other factors that have been referred to in the authorities as pointing to the existence of a fiduciary relationship will also be important. But they will be so only to the extent that they disclose an expectation in one party that the other will act in his or her interests.
At [274], his Honour referred to the statement by Professor Finn which was cited in News Ltd and is cited above. However his Honour added further lines from the same statement as follows:
The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other’s affairs or so align him with the protection or advancement of that other’s interests that foundation exists for the ‘fiduciary expectation’.
In ABN AMRO Bank NV v Bathurst Regional Council (2014) 309 ALR 445 at 666‑7, the Full Court identified the features of a fiduciary relationship as follows:
(1)The “critical feature is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person” ... .
(2)It is the element of undertaking (from the point of view of the fiduciary) or obligation (for and on behalf of the beneficiary) that has the consequence that equity insists that the principal must act in the “interests of” or “for the benefit of” the beneficiary rather than in the principal’s own interests ... .
(3)Whether a fiduciary relationship exists in a particular case, and if so, the scope of that fiduciary relationship, are matters which depend critically upon the particular circumstances of the case ... .
(4)The characteristics which define a fiduciary relationship cannot be exhaustively defined. It is inappropriate to treat the existence of a fiduciary obligation as being dependent upon whether the principal and beneficiary fall into a particular status relationship ... .
(5)Similarly, whether a fiduciary relationship has come into existence does not depend upon the motivation or desire of one party to establish a relationship of trust or confidence. What matters is whether there is a relationship involving the requisite undertaking, determined as a matter of objective characterisation, rather than by having regard to the subjective expectations of the parties ... .
I also note the Full Court’s reliance on Professor (now Justice) Edelman’s article “When Do Fiduciary Duties Arise?” (2010) 126 LQR 302. The author adopted the observations by Professor Finn (later Justice Finn) (in Fiduciary Obligations (Law Book Company 1977) at p 2) that a person is not subject to fiduciary obligations because he is a fiduciary. Rather he is a fiduciary because he is subject to such obligations. It is then argued that such duties inevitably arise, either expressly or impliedly, out of an undertaking to act. That proposition is inherent in the decision in Hospital Products. See, for example, 72‑73 per Gibbs CJ and 97‑98 per Mason J.
I should say something about the decision of Finn J in Australian Securities Commission v AS Nominees Limited and Others (1995) 62 FCR 504. The relevant aspect of that decision depends upon two earlier decisions. The first decision is that of the Court of Appeal in Powell & Thomas v Evan Jones & Co [1905] 1 KB 11. In that case agents who had been employed to procure an advance for their principal, retained, for that purpose, and with the consent of their principal, a sub‑agent. The agents and the sub‑agent were to share the commission. The sub‑agent was aware that the agents were acting for the principal. The sub‑agent procured the advance from a lender and, without the knowledge of the principal or the agents, received a commission from that lender. The trial Judge found that there was a contract of agency as between the principal and the sub‑agent but also found that the sub‑agent was in a fiduciary “position” in relation to the principal. On appeal, at 17‑18 Collins MR said:
The learned judge appears to have come to the conclusion that in fact there was privity of contract between Evan Jones & Co. and Cowperthwaite; but he also seems to have come to the conclusion that, whether there was such privity or not, Cowperthwaite was in a fiduciary position in relation to Evan Jones & Co.; that, inasmuch as he knew that the advance for which he was negotiating at the instance of Powell & Thomas was an advance which they had been employed by Evan Jones & Co. to procure for a commission which he was to share, he stood in a fiduciary relation to the latter, which debarred him from making a private profit for himself out of the transaction without their knowledge or consent. I think that the conclusion of the learned judge was quite right. If it were necessary to establish privity of contract between Evan Jones & Co. and Cowperthwaite, which, in my judgment, is not the case, there appears to me to have been abundant evidence to support the conclusion that Cowperthwaite did occupy the position of agent to Evan Jones & Co., when the negotiations were taking place through him with the Law Guarantee and Trust Society.
The second decision was that in Blair v Martin [1929] NZLR 225. In that case a firm of solicitors acted for Blair who had deposited money with the firm for investment. Martin was a law clerk, employed by the firm to do general conveyancing work and, on behalf of the firm, to take clients to “inspect mortgage securities”. Martin had been attending to Blair’s work for about 11 months. Previously, a partner had attended to that work. Blair, at the firm’s premises, asked Martin to find a suitable investment. At that time Martin held a second mortgage over certain property. Martin did not disclose his ownership of it but made representations as to its quality and sold it to Blair. He did not advise the relevant principal of the firm that Blair was buying his (Martin’s) property. The property was subsequently sold by the first mortgagee. The amount secured on the second mortgage was not paid. At 228‑229 Kennedy J said:
Upon these facts the plaintiff is entitled, in my opinion, to have the transaction set aside. He will be entitled to that relief whether in procuring a suitable investment Messrs. Bennett and Jacobsen were acting as solicitors for the plaintiff, or whether they were acting merely as agents and not as solicitors. The plaintiff, because of where he found the defendant, and because of his past associations with him as a clerk in the employ of Messrs. Bennett and Jacobsen, reposed confidence in him. In my opinion the defendant, when he proceeded to submit investments to the plaintiff, was in a fiduciary relationship to the plaintiff; and his relationship to the plaintiff was, under the circumstances, none the less fiduciary because he was a clerk in the service of Messrs. Bennett and Jacobsen. When the defendant was requested to find a suitable investment for the plaintiff he was in fact instructed as a member of the staff of Messrs. Bennett and Jacobsen; and when he sold his own mortgage without disclosing his interest he was guilty of a breach of duty, and none the less because he was a clerk and not a principal. If the defendant had been merely an agent to find an investment he could not, without breach of duty to his principal, have sold his own property without disclosing his interest. He could not be allowed to assume a position in which his duty to his principal and his own self-interest might conflict. In this case it appears that the defendant was desirous of realizing his second mortgage; and he had every motive of self-interest to represent this mortgage as a good and sound investment, although, in the events which have happened, there may be some doubt whether the investment really was a good and sound investment.
At 231 his Honour said:
The same considerations which apply to a purchase by a solicitor from his client apply also to a sale by a solicitor to his client. The obligations of a clerk in the service of a solicitor, to whom the solicitor has delegated a matter or to whom the solicitor's client goes direct, are no less in the matter upon which the clerk proceeds than the obligations of the solicitor ... . The solicitor's clerk will, in those circumstances, although there be no privity of contract between him and the client, stand in a fiduciary relation to the client ... , and therefore will be bound before selling his own property to the client to make full disclosure to him.
In AS Nominees, Finn J was concerned with a quite complex fact situation, involving trusts and companies with overlapping directorships. However one person, Windsor, appears to have controlled the overall operation. He and his wife were the ultimate recipients of any profits. Two companies “ASN” and “Ample” were the trustees of various trusts, ASN’s trusts being superannuation trusts, and Ample’s trusts being unit trusts. A third company, “Securities” managed ASN and Ample. It also managed the trusts on behalf of each trustee. The company boards were effectively of similar composition. Windsor controlled Securities and was a deemed director of ASN and Ample. ASN and Ample paid management fees to Securities. The affairs of ASN, Ample and the trusts were mismanaged. The Australian Securities and Investments Commission sought to wind up all three companies on the just and equitable ground. A question which arose in the course of the hearing was as to whether Securities owed fiduciary duties to the beneficiaries of the trusts. Finn J considered this question at 519‑521. In each of two of the unit trusts the relevant trust deed appointed Securities as manager and provided that the manager’s services were for the benefit of both the trustee and the unitholders. However his Honour chose not to base any findings as to fiduciary obligations upon these provisions. At 520 his Honour said:
It is the case that Securities has acted as a manager for both the SIPs and the Ample trusts. By manager I mean the party who sought out both investors in, and investments for, the trusts. As will be seen, Windsor was a pivotal figure in securing the commitment of the trusts to some number of the investments to be examined even if, as a matter of legal form, the investment decision itself may have been made by the board of the particular trust company concerned. Again as I have noted the benefit of all fees derived from the SIPs and the Ample trusts (less expenses) have been passed on to Securities.
At 521, his Honour continued:
Turning directly to the fiduciary question, my preferred approach is to resolve it by reference to what Securities in fact did for the trusts and to the context in which this occurred. The ASC has submitted that Securities, in any event, is in a fiduciary relationship with the investor-beneficiaries. That conclusion is one with which I agree for the following reasons.
Even if it is the case that Securities can properly be said as a matter of legal form to be the manager for, or the agent of, the trustees (that is, ASN and Ample) in performing services for the trusts, this by no means precludes a finding that it is, as well, in a direct fiduciary relationship with the beneficiaries of the trusts when providing those services ... .
When one has regard:
(a)to the functions actually performed for the trusts by Windsor who is Securities' alter ego ... ;
(b)to the level of responsibility for identifying and securing trust investments in fact conceded to Windsor by the boards of ASN and Ample;
(c)in the case of SIPI and SIP3, to the terms of the respective trust deeds and of the "Manager's" undertakings in them;
(d)to the appreciation Windsor must reasonably be taken to have had of the vulnerability of the trusts to Securities' actions; and
(e)to the awareness he must reasonably be taken to have had that the function Securities was performing was for the benefit of the trust beneficiaries,
the conclusion in my view is irresistible that Securities was in a fiduciary relationship with the beneficiaries of the respective trusts in rendering services to them.
The more prominent of the criteria which have been endorsed or relied upon in case law in this country for identifying fiduciary relationships - (a) undertaking ... (b) vulnerability to another's power or vulnerability necessitating reliance ... ; and (c) reasonable expectation ... - when applied to the factors I have identified above, confirm in my opinion the conclusion I have reached. Securities is so circumstanced vis-a-vis the beneficiaries of the various trusts of ASN and Ample that the beneficiaries of each individual trust are entitled to expect that Securities will act in the interests of those beneficiaries to the exclusion of its own or any third party's interests, in its dealings for or on behalf of that trust.
In Powell, the fiduciary relationship arose out of the undertaking by the sub‑agent to procure the advance and related only to that transaction. In Blair v Martin, Kennedy J appears to have proceeded on the basis that the fiduciary duty had arisen at a point in time prior to the transaction in question, at the point, “when [Martin] proceeded to submit investments to [Blair]”. There seems to have been an identifiable point at which a principal of the firm transferred to Martin the responsibility for advising Blair. In AS Nominees, Finn J proceeded upon the basis that the “more prominent” criteria for identifying fiduciary relationships were:
·the undertaking;
·vulnerability of the beneficiaries to Securities’ power or vulnerability necessitating reliance on Securities; and
·reasonable expectation, on the part of the beneficiaries that Securities would act in their interests to the exclusion of its own or any third party’s interest.
Securities obviously gave the relevant undertakings when it agreed to manage both the trustees and the trusts. As appears from the reasons of Mason J in Hospital Products at 96‑97, the vulnerability is that which arises out of the opportunity given to the fiduciary to exercise a power or discretion to the detriment of the person to whom the duty is owed. Any reasonable expectations presumably must arise out of the undertakings.
The relationship of principal and agent generally comprises at least some fiduciary duties. It is helpful to consider the question of such duties in that context. In Bowstead & Reynolds on Agency (20th ed, Sweet & Maxwell 2014) the authors say at 1-019:
Incomplete agency: internal relationship only‑the "canvassing" or "introducing" agent. Article 1(4) seeks to achieve completeness by taking in a well-established type of intermediary who makes no contracts and disposes of no property, but is simply hired, whether as an employee or independent contractor, to introduce parties desirous of contracting and leaves them to contract between themselves. In effecting such introductions he is remunerated by commission, which he may sometimes take from both parties. Such a person is a common figure in most western legal systems and may well be referred to as an agent. The most obvious example of such an intermediary in the English cases is the estate agent, who introduces purchasers to vendors and tenants to lessors of houses, and vice versa. Such persons are sometimes also referred to as brokers, and indeed in some English‑speaking countries the estate agent is referred to as a "real estate broker": but this may be misleading since the current practice, at any rate in England, is to use the term "broker" for persons who go beyond introductions and certainly do make contracts for their principals, e.g. commodity brokers, insurance brokers and stockbrokers. Canvassing agents are on the fringe of the central agency principles used by the common law, since their powers to alter their principals' legal relations are at best extremely limited. They often, however, have authority to receive and communicate information on their principals' behalf, and in so doing have the capacity to alter their principals' legal position. They also usually act in a capacity which may involve the repose of trust and confidence, and hence may be subject in some respects to the fiduciary duties of agents towards their principals. They are also subject of typical rules, largely developed in estate agent cases, as to entitlement to commission, which are normally regarded as part of agency law and are relied on also by agents who have greater powers to bind their principals. They may sometimes hold money (e.g. deposits) for their principals. The rules applicable to the internal relationship between principal and agent will therefore apply as appropriate, and for this reason such persons should certainly be treated in a work on agency even though they lack the external powers of the agent. It is an advantage of the formulation of basic agency principle in Article 1, which selects the internal relationship between principal and agent as a distinguishing feature of agency, that it can be taken to cover such persons. Canvassing agents are persons to whom the internal parts of agency law may apply, but who, because of the limited nature of their external powers to affect their principals' legal positions, are not agents in the full sense of the word. They may therefore be said to provide an example of "incomplete agency".
(Footnotes omitted.)

The authors then refer to the following passage from the reasons of Fletcher Moulton LJ in Re Coomber [1911] 1 Ch 723 at 728‑729:
It is said that the son was the manager of the stores and therefore was in a fiduciary relationship to his mother. This illustrates in a most striking form the danger of trusting to verbal formulae. Fiduciary relations are of many different types; they extend from the relation of myself to an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one party and another where the one is wholly in the hands of the other because of his infinite trust in him. All these are cases of fiduciary relations, and the Courts have again and again, in cases where there has been a fiduciary relation, interfered and set aside acts which, between persons in a wholly independent position, would have been perfectly valid. Thereupon in some minds there arises the idea that if there is any fiduciary relation whatever any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. There is no class of case in which one ought more carefully to bear in mind the facts of the case, when one reads the judgment of the Court on those facts, than cases which relate to fiduciary and confidential relations and the action of the court with regard to them. In my opinion there was absolutely nothing in the fiduciary relations of the mother and the son with regard to this house which in any way affected this transaction.
The authors then continue:
It is certainly true that fiduciary relationships arise in situations other than those of agency. Nevertheless, it is submitted that the fact that an agent in the strictest sense of the word has a power to alter his principal's legal position makes it appropriate and salutary to regard the fiduciary duty as a typical feature of the paradigm agency relationship. To do so will not mislead so long as two things are borne in mind. The first is that the word "agent" can be used in varying senses, and not all persons to whom the word is applied are agents in the full (or sometimes, any) legal sense. A canvassing, or introducing agent, for instance, may do no more than bring two parties together and thus may in many situations do little involving the incidence of fiduciary responsibilities at all; though equally he can, as has been stated above, in some circumstances become liable for breach of such duties, as when he conceals from his principal the existence of further offers. Further, even canvassing agents usually have authority to make and receive communications on behalf of their principals, and can be expected to act loyally in exercising those powers. A distributor or franchisee, though sometimes called an agent, is in most respects in a position commercially adverse, rather than fiduciary, to the person whose goods he distributes: he buys and resells. But again it is conceivable that circumstances might give him knowledge of and power over his principal's affairs which could justify the imposition of some fiduciary duties; and this is quite apart from the possibility that he may also in some circumstances exercise true agency functions, for example as regards complaints concerning the goods, and be subject to fiduciary duties in that respect.
The second matter which should be borne in mind is that the extent of an agent's equitable duties (a phrase that embraces more than the strictly fiduciary duties to avoid conflicts of interest and not to profit) and also common law duties may vary from situation to situation. For example, a person who is certainly an agent in general, but who is authorised on a particular occasion to carry out an exactly specified act, may on the occasion act in no more than a ministerial capacity, even though he affects his principal's legal position. Nevertheless, even a messenger may have to decide what to do if the person to whom he is sent is not there. To take another example, a person otherwise at arm's length with a claimant with whom he is proposing to contract may have a limited authority to act for the claimant, for example in filling out the blanks in the document recording the contract. In so doing he may be required both to adhere to the mandate given and to exercise it in good faith. In many situations the duty may be, by virtue of the circumstances, limited; or restricted or even excluded by contract. "The precise scope of [the obligation] must be moulded according to the nature of the relationship."
(Footnotes omitted.)
I cite this passage at length for two reasons. First, it seems to be quite uncontroversial in the way in which it deals with the incurrence and incidents of a fiduciary relationship. Second, the discussion seems appropriate for application to an agency for sale, which relationship may or may not be contractual in nature. I have in mind the arrangement by which a real estate agent undertakes to find a buyer. Obviously, the passage is of more relevance to the case concerning Oliver Hume and Mr Barclay than to that concerning Mr Nankervis.
As I understand it, the appellants’ case is that any relationship, fiduciary or otherwise, between Mr Nankervis and either Investa Properties or Investa Residential must have arisen primarily out of duties to be performed by him as an employee of the former. I understand that the alleged fiduciary relationship, in each case, depends upon the same circumstances and relates to both Lot 170 and Lot 191. The situation as between Oliver Hume, Mr Barclay and each appellant is more complicated. Oliver Hume accepts that it was in a fiduciary relationship with Investa Residential in relation to Lot 191, but not necessarily at relevant times. It seems that Oliver Hume’s retainer was withdrawn with effect from 8 February 2010. The contract of sale to Spencer Projects was executed on 25 June 2010. It denies that it was in any such relationship with Investa Residential in relation to Lot 170. It denies that it was in a fiduciary relationship with Investa Properties at any time, and in relation to either lot. Mr Barclay denies that he was in a fiduciary relationship with either company in relation to Lot 170. Although it is not entirely clear, it seems that he now accepts that in relation to Lot 191, he owed a fiduciary duty to Investa Residential, which duty arose out of his employment with Oliver Hume and/or his position as a director. As with Oliver Hume, Mr Barclay does not accept that he had such obligations at relevant times, given the termination of Oliver Hume’s retainer on 8 February 2010. The case against Oliver Hume is largely based upon its liability for Mr Barclay’s conduct. It is convenient that I deal with the case against each of Mr Nankervis, Oliver Hume and Mr Barclay separately.
WAS THERE A RELEVANT FIDUCIARY RELATIONSHIP BETWEEN MR NANKERVIS AND INVESTA RESIDENTIAL IN RELATION TO LOT 170 OR LOT 191?
The trial Judge found that Mr Nankervis owed fiduciary duties to Investa Properties, and that he acted in breach of those duties. However her Honour declared that there was no relevant fiduciary relationship between him and Investa Residential. Her Honour gave no reasons for this decision, save for an observation that the fact that a fiduciary duty was owed to a parent company did not necessarily lead to the conclusion that a similar duty was owed to a subsidiary.
Mr Nankervis was employed by Investa Properties, not Investa Residential. Hence one must look elsewhere for circumstances which may have created a fiduciary relationship between them. The appellants’ case seems to be that a fiduciary relationship emerged from the matters pleaded at paras 1A, 1B, 2, 3, 5, 16, 17, 18 and 19 of the statement of claim. Paragraphs 1A, 1B, 2, 3 and 5 are as follows:
1A.     At all material times:
(a)Investa Properties was part of a group of companies known as the Investa Property Group, the holding company of which was [Holdings].
(b)Investa Properties acted as the land development division of the Investa Property Group (in which capacity it was also known and referred to as "Investa Land").
(c)       For the purpose of carrying out land development, Investa Properties:
(i)employed all staff of the Investa Property Group;
(ii)maintained offices and equipment;
(iii)engaged architects, planners, engineers, other professional consultants, builders and contractors;
(iv)provided or arranged finance for the purpose of acquiring and developing land;
(v)incorporated or acquired subsidiaries for the purposes of acquiring land at its direction, holding the legal title to land on its behalf, selling land at its direction, and remitting the proceeds of sale at its direction; and
(vi)through its directors, officers and employees, implemented the policy decisions of [Holdings] and made all managerial‑level decisions relating to the acquisition, development and sale of land.
1B.At all material times, Investa Properties was engaged in the development of a site at Cardena Drive (off Augusta Parkway), Augustine Heights, Ipswich, Queensland (the Brentwood Site).
2.[Investa Residential] (formerly known as Clarendon Residential Group Pty. Ltd.):
(a)is, and was at all material times, part of the Investa Property Group;
(b)is, and was at all material times, a wholly owned subsidiary of Investa Properties; and
(c)was at all material times:
(i)the registered proprietor of the land the subject of these proceedings, holding that land at Investa Properties direction; and as such,
(ii)the entity that, at the direction of Investa Properties, contracted with real estate agents in connection with the sales and marketing of the land the subject of these proceedings; and
(iii)the vendor, at the direction of Investa Properties, in the contracts of sale of the land the subject of these proceedings.
3.        Investa Properties employed the first respondent, Ashley Colin Nankervis:
(a)initially in the position of Development Manager and then in the position of Senior Development Manager, reporting to the Queensland General Manager; and
(b)pursuant to a contract of employment signed by Nankervis on 8 March 2006.
5.        Nankervis's duties included:
(a)preparing financial and feasibility reports and reporting to internal management, including making recommendations on relevant matters;
(b)project management including managing project negotiations and ensuring all contracts were accurately prepared and delivered in accordance with Investa Properties' obligations;
(c)managing all projects to ensure compliance with all relevant regulatory, legislative and corporate policy requirements and obligations;
(d)managing land sales including tracking of land sales on a weekly basis;
(e)managing project negotiations and ensuring the accurate preparation of contracts and liaising with and appointing contractors and planners on behalf of Investa Properties; and
(f)approving and/or recommending sales prices for lots within the Brentwood site.
Particulars
Position Description - Senior Development Manager Investa Land - Qld Residential.
At para 16 of the statement of claim the appellants plead:
By reason of the positions of Development Manager and Senior Development Manager held by Nankervis, and the responsibilities that he discharged, and the relationship between Investa Properties and Investa Residential Group as alleged in paragraphs 1A and 2 above, at all material times during his employment, Nankervis:
(a) had fiduciary obligations to Investa Properties and [Investa Residential] to:
(i)act in good faith and with fidelity;
(ii)avoid and disclose to Investa Properties or to [Investa Residential] all actual or perceived conflicts of interest;
(iii)act in the best interests of Investa Properties and [Investa Residential]; and
(iv)give Investa Properties and [Investa Residential] the full benefit of his knowledge and skill, and in particular, pass on to Investa Properties or to [Investa Residential] all information that he had about the marketing and sale of the properties that were the subject of his employment, that might be relevant to the marketing and sale;
(v)not profit from his position, other than by receiving remuneration in the course of his employment with Investa Properties, without full disclosure to and the informed consent of Investa Properties and [Investa Residential]; and
(vi)not assist
Ÿany person with whom he was associated; or
Ÿany entity in which he had an interest; or
Ÿany person or entity from whom or from which he could expect a benefit,
to purchase any of the properties he was engaged in the marketing and sale of, without full disclosure to and the informed consent of Investa Properties and [Investa Residential]; ...
At para 18, the appellants plead that Mr Nankervis answered to the Queensland General Manager, presumably of Investa Properties. Paragraph 19 is as follows:
Nankervis:
(a)was responsible for the overall management of the Brentwood Site; and
(b)was responsible for signing off on all relevant stage releases in the Brentwood site.
Neither the term, “overall management of the Brentwood Site”, nor the term, “signing off on all relevant stage releases”, has any precise meaning. In effect the question must be whether, in entering into employment with Investa Properties, or perhaps at some time thereafter, Mr Nankervis expressly or impliedly undertook fiduciary obligations to Investa Residential, the owner of Lots 170 and 191. Investa Residential was a company with no employees. It permitted Investa Properties to manage its business. Such management included decision‑making concerning the acquisition and sale of properties. In effect Investa Residential made no decisions.
The effect of the pleading seems to be that the fiduciary relationship emerged from:
·the fact that Investa Properties and Investa Residential were part of a group of companies in which Investa Properties performed most, if not all group functions; and
·the nature of Mr Nankervis’s duties as an employee of Investa Properties.
There is no suggestion that Investa Properties was in a fiduciary relationship with Investa Residential. Nor is there, in para 5 of the statement claim, any suggestion that Mr Nankervis had any particular duties concerning Investa Residential. Rather, I infer from paras 1A(c) and 5 that Mr Nankervis would, from time to time, perform functions as an employee of Investa Properties, but relevant to the affairs of Investa Residential. Paragraph 16 of the statement of claim is problematic, particularly if one keeps in mind Professor Finn’s statement that the incurrence of fiduciary duties is the basis for finding the existence of a fiduciary relationship. The pleader seems rather to assert that the relationship gave rise to the duties. Paragraphs 1A and 2 (relied upon in para 16) concern the relationship between Investa Properties and Investa Residential, without going so far as to allege that Investa Properties owed fiduciary duties to Investa Residential. Paragraph 16 otherwise relies upon Mr Nankervis’s position as an employee of Investa Properties and the duties owed by him to Investa Properties. If the question is whether Mr Nankervis owed fiduciary duties to Investa Residential, it might be said that para 16 begs that question. If it had been asserted that Investa Properties had fiduciary duties towards Investa Residential, that Mr Nankervis’s duties were to attend to the affairs of the latter company and that he had undertaken so to do, it may well have followed that he had undertaken fiduciary duties towards it. However, as far as I can see, he undertook to perform functions for his employer, some of which functions concerned the affairs of Investa Residential.
Lot 170
The conduct in connection with Lot 170, said to be in breach of Mr Nankervis’s fiduciary (and other) obligations, is set out at para 194 of the statement of claim as follows:
·entering into the Tonuri agreement, pursuant to which Mr Barclay and Mr Nankervis would participate in, and derive profits from the sale of Lot 170 to Mr Tonuri or his nominee, and subsequent development of the site;
·making incorrect statements concerning the nature of Lot 170 in the course of recommending its sale at $1,454,545;
·recommending such sale without taking into account, or telling the appellants about, a valuation report showing a higher value and design plans and an amended application for roadworks approval than the previously mentioned incorrect statements;
·providing services to Mr Tonuri and TETN as particularized in para 186; and
·relocating and decommissioning of the sales office.
As already noted, the last matter is no longer relevant.
The appellants allege that Mr Nankervis:
(1)... did not act in good faith and with fidelity towards [Investa Properties] and [Investa Residential] at all times during his employment with Investa Properties because of the facts alleged in paragraphs 174A-177, 186, 187, 188, 192.
(2)... did not avoid and disclose to Investa Properties or to [Investa Residential] actual or perceived conflicts of interest because of the facts alleged in paragraphs 174A, 186, 187, 188, 192.
(3)... did not at all times act in the best interests of Investa Properties and [Investa Residential] because of the facts alleged in paragraphs 174A-177, 178,186, 187,188, 192.
(4)... did not pass on to Investa Properties or to [Investa Residential] all information he had about the marketing and sale of the properties that were the subject of his employment and that might be relevant to the marketing because of the facts alleged in paragraphs 174A-177, 186, 187, 188, 192.
(5)... profited from his position, or stood to profit from his position, other than by receiving remuneration in the course of his employment with Investa Properties and did not disclose that fact to Investa Properties and [Investa Residential] because of the facts alleged in paragraph 174A. … .
(6)... gave assistance to persons with whom he was associated, or to persons or entities from whom or from which he could expect a benefit to purchase the properties which he was engaged in the marketing and sale of without full disclosure to Investa Properties or to [Investa Residential] because of the facts alleged in paragraphs 174A, 186, 187 and 192.
The pleading seems to allege that the same conduct breached duties owed to both companies. The basis for finding that the relevant duties were owed to Investa Properties is plain. However in the end it seems that the basis upon which the appellants seek to attribute to Mr Nankervis, duties owed to Investa Residential, they rely upon the fact that in performing the duties owed to the former company, it dealt with matters concerning the affairs of the latter company. Further, one might infer that it was for Investa Properties, and not its employees, to protect the interests of Investa Residential. Mr Nankervis’s principal responsibility must have been to Investa Properties, to which company he had undertaken obligations. Further, if Investa Residential was vulnerable, it was to the effects of decisions made by Investa Properties, particularly in its application of group policies.
Her Honour summarized the appellants’ case concerning Lot 170 at [177] as follows:
In relation to Lot 170 the case of the applicants against Mr Nankervis for breach of fiduciary duties is primarily found in paragraphs 165-184 of the amended statement of claim. In summary, the applicants submit as follows:
Ÿ On or about 5 November 2008, CB Richard Ellis prepared a valuation report for ANZ Banking Group Ltd in respect of Lot 170. Mr Barclay received the report, and on 19 December 2008 he emailed a copy to Mr Nankervis and Mr Waters. This report valued Lot 170 at $4 million, plus GST, as at 5 November 2008.
Ÿ A copy of this report was also emailed to Mr Tonuri on 2 December 2008, copied to Mr Nankervis.
Ÿ The CB Richard Ellis report included a statement describing Lot 170 as:
Moderately sloping site subject to a difficult topography Overlay with approximately 14% of the site sloping between 20% and 25% along the northern boundary.
Requirement for substantial retaining wall works.
Majority of lots on the eastern side of the site will require benching and a split level house design.
Ÿ On 26 November 2008, Citimark sent an email to Mr Barclay with a letter attached, offering to purchase Lot 170 for $3.7 million including GST, subject to a thirty day due diligence period. The offer was signed by Mr McWilliam, the Director – Residential Land of Citimark, although allegedly withdrawn over the telephone on 27 November 2008. Mr Nankervis conceded that Mr Barclay told him of this offer. There is no evidence that Mr Nankervis told his superiors (in particular Mr Stubbs) at Investa about the Citimark offer.
Ÿ On or about 16 December 2008, Mr Nankervis received engineering advice from Mr Walker, director of Projex North Ltd, in relation to Lot 170. That advice included the following comment:
Assessment of the existing design with Mr Ashley Nankervis revealed that a design which provided significantly flatter allotments could be achieved by adjusting the levels of Road 2 and Road 3.
Ÿ Mr Nankervis emailed this advice to Mr Barclay and Mr Tonuri, but did not disclose it to the applicants.
Ÿ From about December 2008, Mr Nankervis was involved in submitting an amended Operational Roads Works Approval to the Ipswich City Council which sought levelling and retaining of Lot 170 to create flat Lots.
Ÿ On or before 20 January 2009, Mr Nankervis and Mr Barclay entered into an agreement with Mr Tonuri, pursuant to which Mr Nankervis and Mr Barclay would participate in and derive profits from the sale to Mr Tonuri or his nominee and subsequent development of Lot 170.
Ÿ On 19 January 2009, Mr Barclay sent an email to Mr Stubbs and Mr Nankervis reporting on a meeting with another possible purchaser, Mr Lance Washington. Notwithstanding that Mr Washington expressed concern over the sloping nature of Lot 170, Mr Nankervis did not forward him the advices concerning the flattening of the site.
Ÿ In a memorandum dated 2 February 2009 and in a subsequent Delegated Authority Approval prepared on or about 6 February 2009, Mr Nankervis recommended the sale price for Lot 170 in the amount of $1,454,545 exclusive of GST to Two Eight Two Nine. This price was referable to a valuation of obtained on 12 June 2008 from valuer Jones Lang LaSalle dated 12 June 2008, valuing Lot 170 in the range of $2.1 million-$2.3 million at that date, and the view at that time in Investa that Lot 170 could be sold for a price in the range of $1.8 million.
Ÿ In his approval submission, Mr Nankervis wrote:
The site is irregular in shape and heavily vegetated with steep topography, rising from the southeast to the northwest and is unattractive to our target market as only speciality custom build housing can be built on the site. The housing product needs to accommodate steep slope of 10% to 15%. No slab on ground product will be achieved and this is compounded by the tree retention Council require and also approval limitations in association with the degree of earthworks allowed on the site, there is no ability to level the site.
These statements were incorrect in light of the design amendment proposal and the application for amended Operational Road Works Approval.
Ÿ Mr Nankervis did not seek instructions to investigate the possibility of sale of Lot 170 at a higher price and did not recommend that the sale price of Lot 170 be reconsidered, notwithstanding that:
o        he had seen a more recent report valuing Lot 170 at $4 million;
o        he knew of the Citimark offer of $3.7 million; and
o        he had seen advices indicating that levelling the site was feasible.
Ÿ Mr Nankervis’ submission was approved and Lot 170 sold for $1,454,545. This price did not reflect the potential market value of Lot 170.

Had, at any time between 8 February 2010 and 20 April 2010, for example, Mr Barclay and Oliver Hume made the disclosures required of them by reason of their undischarged fiduciary obligations characterising or “circumstancing” as Dr Finn would put it, their relationship with Investa Residential up to 8 February 2010, would Investa Residential have extended on 20 April 2010 the then expired option granted to Ms Barclay? One imagines not. Otherwise, presumably this aspect of the litigation would not have arisen. Would Investa Residential have sold Lot 191 to Spencer Projects connected, as it was, to Ms Crosbie, the daughter of Ms Barclay, had Mr Barclay and Oliver Hume put Investa Residential on notice of the earlier non‑disclosed matters even assuming that, by that point, or on 25 June 2010 when Lot 191 was sold to Spencer Projects, there was no obligation to disclose the connection between Spencer Projects, Ms Crosbie and Ms Barclay and thus Mr Barclay.
There is no suggestion in the evidence of any disclosure after 8 February 2010 of the matters not disclosed in the period up to 8 February 2010. The conduct after 8 February 2010 in failing to disclose the relevant matters constitutes a continuing breach of the fiduciary obligations beyond 8 February 2010 of both Mr Barclay and Oliver Hume.
It follows from these observations that, in my view, Mr Nankervis had assumed fiduciary obligations to Investa Residential (in addition to the fiduciary obligations owed to his employer Investa Properties) for the reasons summarised at [349] and [350] of these reasons in relation to Lot 170. Those obligations required Mr Nankervis to disclose to Investa Residential all matters material to the sale of Lot 170 by disclosing those matters to the relevant officers of Investa Properties, as those decision‑makers were, in every practical sense, the decision‑makers for Investa Residential. Those obligations required Mr Nankervis to not allow his own interests to come into conflict with his fiduciary duty to each appellant to disclose all matters material to the sale and, put simply, his duty to protect and further the interests of the appellants in securing a sale of Lot 170 in the best interests of both appellants. The duties are described at [350] of these reasons.
It also follows that Mr Nankervis had assumed fiduciary obligations to Investa Properties and Investa Residential (comprised of the same content) in relation to Lot 191. I will return to issues in relation to Lot 191 later in these reasons.
PART 5 – OTHER ASPECTS OF THE SPECIFIC MATTERS IN ISSUE IN THE APPEALS
As to Mr Barclay and Oliver Hume, these further matters should be noted.
Lot 170
The appellants pleaded at para 162E that Oliver Hume had assumed particular fiduciary obligations to each of them. Those obligations were said to comprehend an obligation to act in good faith and with fidelity; avoid and disclose any and all perceived conflicts of interests; to act in the best interests of each appellant; to give each appellant the full benefit of Oliver Hume’s skill and expertise; not to profit from its position; and not to assist any person to obtain a benefit in relation to Lot 170 without full and frank disclosure to each appellant.
As to Mr Barclay, the appellants pleaded his particular relationship with Oliver Hume and his significant role in the provision of Oliver Hume’s services to each appellant and pleaded that he too assumed fiduciary obligations to each appellant in similar terms to those obligations assumed by Oliver Hume.
The appellants then pleaded many of the chronological matters described in these reasons at [302] to [330] although in more concise terms. In particular, the appellants rely upon the agreement struck between Mr Nankervis, Mr Barclay and Mr Tonuri as earlier described.
The appellants also pleaded events which occurred after August 2009 notwithstanding that the contract for the sale of Lot 170 was settled on 31 July 2009. The events pleaded at paras 186, 187 and 189 concern the provision of services by Mr Barclay to Mr Tonuri or other persons associated with the ultimate transferee, TETN, after completion of the sale. Questions have arisen as to the relevance of these later events. For my part, I infer that the appellants pleaded these matters in order to establish continuity in the conduct undertaken by Mr Nankervis, Mr Barclay and Mr Tonuri during the period fiduciary obligations were said to subsist (between each appellant and Mr Barclay and Oliver Hume), and those events which occurred later in time which show continuing engagement between Mr Barclay (whilst still employed by Oliver Hume) and Mr Tonuri, TETN and other persons associated with TETN in relation to Lot 170.
The appellants pleaded at para 195 that Mr Barclay breached the pleaded duties by entering into the agreement with Mr Nankervis and Mr Tonuri and by providing a suite of services to Mr Tonuri and TETN in connection with that transaction made in breach of duty. Oliver Hume was said to have breached its duty by reason of Mr Barclay’s entry into the agreement with Mr Nankervis and Mr Tonuri and by reason of Mr Barclay having provided the suite of services to Mr Tonuri and TETN.
As mentioned earlier, the primary Judge concluded that Oliver Hume had not been appointed in accordance with the provisions of the PAMD Act and thus no fiduciary obligations arose as between either appellant and Oliver Hume because the legislative scheme did not allow for the subsistence of a relationship of principal and real estate agent outside the scope of the scheme and, more particularly, traditional equitable obligations owed by real estate agents to their principals had been subsumed into and were governed by the PAMD Act and regulations made under that Act. However, I agree with the observations of Dowsett J at [151] of these reasons, that the effect of the application of the PAMD Act to the dealings between Investa Residential and Oliver Hume is that Oliver Hume, in acting as a real estate agent without appointment under the Act, breached s 133 of that Act and by reason of s 141 of that Act, Oliver Hume was precluded from receiving any reward for so acting. Moreover, the PAMD Act did not have the effect of prohibiting any agreement between a principal and agent which did not conform to the Act. Other consequences arose under the Act as described by Dowsett J at [151].
The critical question is whether fiduciary obligations could subsist between relevant parties notwithstanding that the principal and agent had failed to comply with the provisions of the PAMD Act in reducing that arrangement to formal terms. The primary Judge took the view that no fiduciary relationship subsisted between Mr Barclay or Oliver Hume on the one hand and Investa Residential on the other hand because there was no appointment in accordance with the provisions of the PAMD Act. I agree that, as a matter of statutory construction, that result does not arise. The true position is that once the character of the relationship between the relevant participants is one in which Oliver Hume assumed fiduciary obligations, a fiduciary relationship arose between Oliver Hume (and Mr Barclay) on the one hand and Investa Residential on the other. Thus, the true question is whether the parties have entered into a fiduciary relationship having regard to the tests earlier described.
Notwithstanding the primary Judge’s view about the operation of the PAMD Act, the primary Judge went on to consider, should she be wrong about that conclusion, whether Oliver Hume and Mr Barclay had assumed fiduciary obligations owed to Investa Residential with the result that a fiduciary relationship arose between them.
At [157] and [158] of these reasons, Dowsett J identifies the factors which informed the primary Judge’s thinking on that question resulting in the conclusion that no such relationship subsisted. For the reasons I have already identified, I take the view that a fiduciary relationship did subsist between Oliver Hume (and Mr Barclay) on the one hand and Investa Residential on the other hand. As I indicated earlier in these reasons, I respectfully depart from the primary Judge’s views about that matter for the reasons I have indicated.
At [159] to [163], Dowsett J identifies a sequence of factors which leads his Honour to conclude that it seems fairly arguable that a duty was assumed by Oliver Hume to convey to Investa Residential any offers which it received falling within the terms stipulated in the email exchanges already described and, arguably, a duty to act, with respect to Lot 170, in the best interests of Investa Residential and not to put itself in a position where its interests conflicted with those of Investa Residential (subject to the express reservation of Oliver Hume’s right to seek commission remuneration from a purchaser). Dowsett J concludes at [164] that his Honour’s reasoning about those matters equally applies to Mr Barclay’s case. Dowsett J also observes that to the extent that there was, arguably, a fiduciary relationship, the agreement struck between Mr Nankervis, Mr Barclay and Mr Tonuri seems, again at least arguably, to be in breach of the duties associated with such a relationship. Dowsett J also concludes that Mr Barclay’s knowledge of the dealings between Mr Barclay, Mr Nankervis and Mr Tonuri may well lead to the conclusion that such knowledge is to be imputed to Oliver Hume.
I have emphasised, by italics the various qualifications adopted by Dowsett J that these conclusions arise only at the level of being arguable. As a result of that view, Dowsett J concludes that there may be other features of the relationship and thus other features of obligations owed to Investa Residential which have not been properly identified because the process of fact‑finding by the primary Judge was compromised by her Honour’s conclusion that no fiduciary relationship could subsist between the participants due to the operation of the PAMD Act. Dowsett J also concludes that the submissions of the parties on appeal have offered little assistance in identifying the “incidents of any, more limited fiduciary relationships” and, because the scope of the relationship is a factual inquiry requiring findings of fact (and not simply category based), the proceeding ought to be remitted to the trial Judge to resolve, on the facts, all incidents of the relationship.
For my part, I am very reluctant indeed, respectfully, to remit the proceeding to the primary Judge for a further determination of these factual matters. This litigation has already consumed a great deal of cost and time. If at all possible, the content of the fiduciary relationship between Oliver Hume (and Mr Barclay) and Investa Residential ought to be resolved having regard to the existing fact‑finding and the weight of evidence. The obligations of an appeal court in this regard are put this way by French CJ, Bell, Keane, Nettle and Gordon JJ in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]:
The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. [citations omitted]
For my part, I am satisfied, having regard to the evidence I have set out and discussed at [302] to [352] of these reasons, that the content of the obligations owed to Investa Residential (and Investa Properties), assumed by Oliver Hume and Mr Barclay in connection with the sale of Lot 170 included: (a) an obligation to act in the best interests of Investa Residential; (b) an obligation to convey to Investa Residential any offers falling within the terms of the emails exchanged between Mr Nankervis and Mr Barclay for Oliver Hume as described in these reasons (as an expression of the obligation at (a)); (c) an obligation to disclose to Investa Residential (through the mechanism earlier described) any matters material to the sale of Lot 170 (as an expression of the obligation at (a)); (d) an obligation not to put themselves in a conflict of interest and duty (or interest and interest); and (e) an obligation to disclose the particular arrangements struck between Mr Nankervis, Mr Barclay and Mr Tonuri described at [302] to [316] and [338] to [352] of these reasons. That obligation fell not only to Mr Barclay but also Oliver Hume because Mr Barclay’s knowledge is imputed to Oliver Hume for all the reasons identified by Dowsett J.
I am satisfied that Mr Barclay failed to discharge these obligations by entering into the agreement with Mr Nankervis and Mr Tonuri thus embracing a conflict of interest and duty and by failing to disclosure the content of the agreement at any relevant time. Oliver Hume failed to discharge the obligations it assumed by failing to disclose the relevant information known to Mr Barclay and imputed to Oliver Hume by reason of the role and position of Mr Barclay in the structure and activities of Oliver Hume.
The orders to be made on appeal concerning Lot 170 ought to reflect the conclusions I have mentioned.
The valuation issues
Questions arose, on the face of the notices of appeal, going to valuation issues. It is convenient to deal with Lots 170 and 191 together on these issues. The questions arising are these: first, whether the primary Judge ought to have found that the market value of Lot 170 was greater than $1,454,545.00; second, whether the primary Judge ought to have found that the market value of Lot 191 was less than $290,000.00. These questions of valuation go to the quantification of the claimed compensation for breach of the fiduciary obligations owed to the appellants and not to questions of the assumption and subsistence of fiduciary obligations, the content of the obligations or breaches of duty. They go only to the measure of the compensation. As Dowsett J observes, no party contended that the Court could presently determine, in these proceedings, questions of valuation, principally because, first, there is no “order” appealed from to which the assessments of value relate and, second, questions of relief were separated out by the primary Judge for later determination. Those matters are yet to be determined.
Further, the issue of the causal link between a breach of duty and the loss for which compensation is sought also goes to the question of remedies separated out for later determination by the primary Judge. I agree that the Full Court ought not to decide those matters in the course of this hearing.
Lot 191
As to Lot 191, Oliver Hume and Mr Barclay admitted on the pleadings that as at 23 June 2010, Ms Barclay was the sole director of and shareholder in Spencer Projects. In the face of that admission, the primary Judge, not surprisingly, so found. However, the evidence put on at trial demonstrates that the sole director and shareholder was not Ms Barclay but rather, Ms Crosbie, Ms Barclay’s daughter. It may be that Mr Barclay and Oliver Hume made the admission because they were willing to treat, for the purposes of the issues in the proceedings, Ms Barclay’s daughter as standing in the shoes of Ms Barclay for all practical purposes due to the mother/daughter relationship between the two individuals. The pleaded case is breach of fiduciary duty by reason of a failure by Mr Barclay and Oliver Hume to disclose to Investa Residential, Ms Barclay’s interest in Spencer Projects rather than a case based upon non‑disclosure of Ms Barclay’s daughter’s interest. Notwithstanding these complications, Investa Residential says that it suffered loss as a result of the sale of Lot 191 to Spencer Projects and such loss has a causal relationship with the breach of duty by Mr Barclay and Oliver Hume in failing to disclose Ms Barclay’s interest in QPC and the non‑disclosed steps relating to the proposed subdivision of Lot 191.
I agree with the observations of Dowsett J contained in the last two sentences of [99] of his Honour’s reasons.
I also agree with the observations of Dowsett J at [100] to [112] of his Honour’s reasons in relation to the questions in issue between the appellants, Mr Barclay and Oliver Hume concerning Lot 191, subject to one matter discussed by his Honour at [117] to which I will return.
The critical consideration concerning Mr Barclay is that he owed (and conceded it to be so) fiduciary duties to Investa Residential from the date of Oliver Hume’s appointment on 16 July 2009 until at least the date of termination of the retainer on 8 February 2010. He failed to discharge his duty by failing to disclose, at least during the period of the fiduciary relationship and thus at any time prior to 8 February 2010, his wife’s interest in QPC and the subdivisional opportunities for Lot 191.
Oliver Hume also owed a fiduciary obligation to Investa Residential to make those disclosures at least at any time up to 8 February 2010 because it had Mr Barclay’s knowledge of the relevant matters, as a matter of imputation as discussed earlier, and thus had an obligation of disclosure.
At [117], Dowsett J concludes that Declarations 3 and 4 made by the primary Judge should be amended so as to reflect a proven breach of duty by conduct of non‑disclosure prior to 8 February 2010. I would, respectfully, depart from such amendments because once it is accepted that Mr Barclay owed a duty of disclosure to Investa Residential of the relevant matters, his duty of disclosure did not conveniently end with the termination of Oliver Hume’s retainer. Although the fiduciary relationship might have come to an end, he had a continuing obligation of disclosure from the moment the obligation arose and the duty to do so did not fall away on termination of the retainer. There was a continuing breach of the duty to tell Investa Residential of the material things. Oliver Hume had its own duty of disclosure which did not end on termination of the retainer, either. Each of them, whether before or after 8 February 2010, ought to have told Investa Residential of the material matters and their failure to do so was a continuing breach on and after 8 February 2010.
Dowsett J observes that whilst fiduciary obligations owed to Investa Residential may have survived the termination of the agency relationship, Investa Residential did not plead a case, as against Oliver Hume and Mr Barclay, based on continuing duties. Rather, the duties were said to have subsisted “while [Oliver Hume or Barclay was] providing real estate agent services in relation to Lot 191 …”.
However, both Oliver Hume and Mr Barclay concede that they owed fiduciary obligations to Investa Residential from the period of the appointment on 16 July 2009 until termination of the retainer on 8 February 2010. Notwithstanding the limitation they place on the scope of the concession, the appellants have nevertheless made good their case (ultimately by reason of the concession) that Oliver Hume and Mr Barclay owed Investa Residential fiduciary obligations by reason of their engagement to provide “real estate agent services in relation to Lot 191”. It follows, as a matter of law, that the termination of the retainer did not conveniently extinguish the obligation to disclose the relevant matters after 8 February 2010.
The relevant matters are the subdivisional potential for Lot 191 which Mr Nankervis and Mr Barclay were working upon at least by 19 October 2009 and the circumstance that Ms Barclay was to be the beneficiary of the grant of the call option of 23 December 2009 to QPC at $195,000.00.

The focus of the issues on appeal on this topic concerned the question of the content of the fiduciary obligations owed by, particularly, Oliver Hume to Investa Residential; whether Oliver Hume was to be treated as impressed with Mr Barclay’s knowledge of the relevant matters for all the reasons discussed in these reasons overall; and whether Oliver Hume had a duty of disclosure of the things known by Mr Barclay. If so, no pleading point was ever taken as a contended answer to a continuing obligation to disclose once Oliver Hume was found to have an obligation of disclosure by force of the retainer.
A question will, no doubt, arise about whether the loss said to have been suffered by reason of the sale of Lot 191 to Spencer Projects is causally related to the conduct the subject of the declarations but that is a matter for the split hearing on loss and damage. Obviously enough, the loss will need to be demonstrated to be a “but for” loss related to the non‑disclosure. The non‑disclosure after 8 February 2010 might be shown to have resulted in a sale at an under‑value (if a sale at an under‑value ultimately be the proven case). That will, no doubt, raise the sequence of events concerning the grant of the option to QPC, its extension and other related matters. However, I would not limit the declarations in the way suggested by Dowsett J although I accept that the declarations need to be framed carefully so as to precisely reflect the relevant conduct.
Investa Properties
As to Investa Properties, I agree with the observations of Dowsett J at [167] of his Honour’s reasons.
Matters as between Oliver Hume, Vero and Mr Barclay in relation to the various claims and cross‑claims between these parties
Although I am reluctant to remit any aspect of the proceedings to the trial Judge due to the additional time and cost involved in doing so, I accept that the various claims and cross‑claims going to the matters identified at [168] and [169] of the reasons of Dowsett J so far as they relate to Lot 170 have not been addressed by the primary Judge in any dispositive way. I also accept that even though the difficulties identified by Dowsett J require these particular matters to be remitted to the primary Judge, I nevertheless remain of the view that the question of the content of the fiduciary obligations concerning Lot 170, the subject of the observations of Dowsett J at [166] of his Honour’s reasons, ought not to be remitted to the primary Judge and that those matters ought to be determined by this Court in the way I have indicated.
Nevertheless, there are matters which need to be addressed by the primary Judge and I now turn to those matters.
The context is this. Mr Barclay contends that he is entitled to an indemnity from Oliver Hume in respect of any claim of the appellants made good by either of them against him; an indemnity in respect of any costs he might be ordered to pay to either appellant in the various proceedings; and an indemnity in respect of the costs he has incurred in answering and responding to the various proceedings. Apart from these claims, Mr Barclay also turns to Vero and contends that the policy “responds” to such claims and that he is entitled to be indemnified under it.
Oliver Hume contends that if Mr Barclay engaged in classes of conduct which resulted in breaches of his duties to either appellant, and should Oliver Hume be liable to either appellant in respect of any of Mr Barclay’s conduct, then Mr Barclay is necessarily in breach of his duties owed to Oliver Hume. Oliver Hume says that those duties are to be found in the orthodox duties Mr Barclay owes as an employee; fiduciary duties he owes to Oliver Hume; duties owed as a director of Oliver Hume; and duties derived from claims based in contract.
Questions arose about whether Oliver Hume was also contending at trial that Mr Barclay had engaged in fraud and whether the primary Judge had made findings suggesting that Mr Barclay’s conduct had been fraudulent or dishonest. No such finding was made by the primary Judge and those matters are addressed at paragraphs of the Judgment of Dowsett J with which I have already expressed agreement; see particularly [101] of Dowsett J’s reasons.
As to Lot 191, the Court declared that Mr Barclay breached his fiduciary duties to Investa Residential (Declaration 3) and that Oliver Hume breached its fiduciary duties owed to Investa Residential (Declaration 4). The Court upheld Oliver Hume’s cross-claim against Mr Barclay (Order 5) and although the cross-claim is ultimately in respect of a liability arising out of a breach of fiduciary duty owed to Investa Residential, it is not clear (subject to what follows) whether the obligation to indemnify Oliver Hume, as found by the primary Judge on the cross‑claim, is based upon a breach of a fiduciary duty owed to Oliver Hume or one or more of the other pleaded grounds of breach of duty owed by Mr Barclay to Oliver Hume.
Mr Barclay challenges Order 5 upholding Oliver Hume’s cross‑claim.
The elements engaged in upholding the cross‑claim seemed to be these. The primary Judge found that Mr Barclay’s conduct breached his duty to Investa Residential; such conduct was the source of Oliver Hume’s own breach of its fiduciary duty owed to Investa Residential; and that the only person within Oliver Hume who knew of the relevant conduct was Mr Barclay. The primary Judge seemed to conclude (on the footing that the contention could not be seriously doubted) that Mr Barclay’s conduct breached a duty he owed to Oliver Hume as an employee of the company and also breached his duty to Oliver Hume as a director of the company. Mr Barclay’s grounds of challenge and his contentions in support of those grounds are set out by Dowsett J at [173] and [174] of his Honour’s reasons. It is not necessary to repeat them here. I accept that, with respect to Lot 191 (there being no dispositive treatment so far as Lot 170 is concerned), the reasons of the primary Judge fail to identify the particular conduct upon which the decision is based and the duty breached, as explained by Dowsett J at [175] of his Honour’s reasons. I also accept, as Dowsett J observes at [178] of his Honour’s reasons, that it was difficult for Mr Barclay to challenge the decision under appeal other than by making assumptions about the factual and legal basis for the decision. I therefore agree with the observations of Dowsett J at [178] and [179] of his Honour’s reasons.
Apart from the challenge to Order 5 upholding Oliver Hume’s cross‑claim against him, Mr Barclay presses his own claim for an indemnity as earlier described.
The foundation for that claim is explained by Dowsett J at [181] to [186] of his Honour’s reasons and it is not necessary to further describe those matters here. It should be noted, however, that the claim to an indemnity as earlier described, now relates to matters arising in relation to both Lot 170 and Lot 191.
The cross‑claim by Mr Barclay against Oliver Hume was dismissed by the primary Judge: Order 3. That followed because Mr Barclay had failed to identify a basis for such a claim. For the reasons identified by Dowsett J at [186] of his Honour’s reasons, I agree that the primary Judge correctly dismissed the claim on that ground. The primary Judge, however, did not simply conclude that Mr Barclay had sought (and failed to make good) a right of indemnity, on the contended footing that Oliver Hume had an obligation to indemnify Mr Barclay as an employee in respect of liabilities incurred to third parties in the course of the employee’s employment. The primary Judge also seemed to conclude, in effect, that even if a basis for an indemnity had been demonstrated on the facts and the law, Mr Barclay had nevertheless failed to discharge his duties owed to Oliver Hume as its employee and was also in breach of his duties to the company as a director. The expression of those duties were said to be conduct of placing his own interests ahead of those of Oliver Hume (that is, failing to avoid a conflict of interest and continuing to act in the face of a conflict of interest). Presumably these breaches were regarded by the primary Judge as conduct otherwise disentitling Mr Barclay to an indemnity. It seems to me that the primary Judge was relying on both limbs of the reasoning in support of Order 3 although these other matters of breach of duty as an employee and director are conclusionary rather than reasoned. That is why the primary ground of dismissal of the cross‑claim by Mr Barclay was a failure to identify on the facts and the law a reasoned basis for such a claim.
By Order 4, the primary Judge dismissed Mr Barclay’s claim against Vero for indemnity. As to the questions in issue between Mr Barclay and Vero, I agree with the observations of Dowsett J at [187] to [199] of his Honour’s reasons. It is not necessary to add anything further as to that matter.
I propose to simply give a general indication of the scope of the orders that ought to be made based upon these reasons. The parties ought to formulate the appropriate orders giving effect to these reasons supported by submissions where necessary. The principles governing the orders are these:
(1)The appellants (and, in particular, Investa Residential) have made good their claims, as formulated on appeal, against Mr Nankervis concerning Lot 170 and Lot 191. Declarations ought to be framed reflecting those matters especially in relation to the position of Investa Residential.
(2)Declaration 5(c) cannot stand.
(3)Further declarations may also be necessary to give proper effect to the matters described at points (1) and (2).
(4)As to Mr Barclay, the appellants have made good their claims, as formulated on appeal, that:
(a)Mr Barclay assumed fiduciary obligations and was in a fiduciary relationship with Investa Residential in relation to Lot 170;
(b)the content of the fiduciary duties are those set out at [380] of my reasons;
(c)Mr Barclay breached his fiduciary duties having regard to the matters described in my reasons at [337] to [352] as explained more broadly at [302] to [352];
(d)I would not remit the question of the incidents, content and scope of the fiduciary relationship between Mr Barclay and Investa Residential in relation to Lot 170 to the primary Judge;
(e)Declaration 5(d) cannot stand.
(5)As to Oliver Hume, the appellants have made good their claims, as formulated on appeal, that:
(a)Oliver Hume owed fiduciary obligations to the appellants in relation to Lot 170;
(b)the content of the fiduciary duties are those set out at [380] of my reasons;
(c)Oliver Hume breached its fiduciary duties as described at [381] of my reasons having regard to the elaboration at [337] to [352] and [302] to [352] more generally, of my reasons;
(d)these questions ought not to be remitted to the primary Judge;
(e)Declaration 5(e) cannot stand.
(6)As to Lot 191, Declarations 3 and 4 ought not to be amended to limit them to a proven breach prior to 8 February 2010 for the reasons explained earlier.
(7)Order 5 of the orders made on 10 September 2015 be set aside.
(8)Oliver Hume’s cross‑claim against Mr Barclay be remitted to the trial Judge for determination according to law and in accordance with these reasons.
(9)Mr Barclay’s appeal as against Oliver Hume be dismissed save as to costs.
(10)Order 4 made by the primary Judge on 10 September 2015 be set aside.
(11)Mr Barclay’s cross‑claim against Vero be remitted to the primary Judge for determination according to law and these reasons.
(12)Orders be formulated as to the disposition of the appeals more generally in the light of the specific orders described above.
(13)All parties be given liberty to apply.
(14)Costs be reserved for later determination.

I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.
Associate:
Dated: 1 September 2017
REASONS FOR JUDGMENT
WHITE J:

The circumstances of these appeals are set out in the respective reasons of Dowsett J and Greenwood J.
I will state my conclusions by reference to the issues identified by Dowsett J in [24] of his reasons.
Issue (a) – Whether Oliver Hume and Mr Barclay owed fiduciary duties to Investa Properties and Investa Residential in respect of Lot 170.
I respectfully agree with the reasons of Greenwood J for concluding that both Oliver Hume and Mr Barclay owed and breached fiduciary duties to Investa Properties and Investa Residential in respect of Lot 170. I add that I also agree with much of the reasons of Dowsett J on this issue but, like Greenwood J at [379]‑[382], consider that it is possible (and preferable) for this Court to determine the issues in dispute without remitting them for further consideration by the primary Judge.
Issue (b) – Whether Mr Nankervis owed fiduciary duties to Investa Residential in respect of Lots 170 and 191 and, if so, whether he breached those duties.
I respectfully agree with the reasons of Greenwood J for concluding that Investa Residential has made out this aspect of its appeal.
Issue (c) – Whether, as at 25 June 2010, Oliver Hume and Mr Barclay owed fiduciary duties to Investa Residential in respect of Lot 191.
I respectfully agree with the reasons of Greenwood J on this issue and would dismiss those grounds of appeal by Oliver Hume and Mr Barclay which give rise to it. On the question of whether a fiduciary obligation which arises during the subsistence of a contractual relationship may continue after the termination of that relationship, I add references to Longstaff v Birtles [2001] EWCA Civ 1219, [2002] 1 WLR 470 at [1], [35]; Conway v Raitu [2005] EWCA Civ 1302, [2006] 1 All ER 571 at [75]‑[77]; and Diamantides v JP Morgan Chase Bank [2005] EWCA Civ 1612 at [33]‑[35].
Issue (d) – Whether, in the event that Oliver Hume and Mr Barclay did owe fiduciary obligations to Investa Residential in respect of Lot 191, the primary Judge nevertheless erred in the findings concerning the breach of those obligations.
I respectfully agree with the reasons of Greenwood J for rejecting these grounds of appeal by Oliver Hume and Mr Barclay. I also respectfully agree with the reasons of Dowsett J on this topic, save that I do not agree with that part of His Honour’s reasons which would result in declarations [3] and [4] made by the primary Judge being amended so as to limit them to breaches occurring before 8 February 2010.
Issues (e), (f) and (g) – These issues arise from Oliver Hume’s complaints about the findings of the primary Judge concerning the actual or apparent authority of Mr Barclay in relation to the conduct which Investa Properties and Investa Residential impugn, the attribution of Mr Barclay’s conduct to Oliver Hume, and the attribution of Mr Barclay’s state of mind to Oliver Hume.
It is convenient to consider these issues together. I respectfully agree with the reasons of Dowsett J, at [99]‑[109], for dismissing these grounds.
Issues (h) and (j) – The issues of loss arising from the valuations of Lots 170 and 191.
Again, it is convenient to consider these issues together. Like Dowsett J at [25]‑[26] and Greenwood J at [383]-[384], I consider that these grounds go to the question of remedies and are not raised by the appeal against the primary Judge’s orders following the trial of the liability issues in the proceedings. Accordingly, it is inappropriate to address them in the context of the present appeal. I would dismiss Grounds (h) and (j).
Issue (i) – Whether the primary Judge erred in ordering that the cross claim of Oliver Hume against Mr Barclay “be upheld”.
I consider that this ground of appeal by Mr Barclay should be upheld. I respectfully agree with the reasons of Dowsett J on this issue, at [170]‑[175], and agree that the matters should be remitted to the trial Judge for further consideration according to law.
Issue (k) – Whether Mr Barclay should have been found to be entitled to indemnity by Oliver Hume.
I respectfully agree with Dowsett J, for the reasons he gives at [180]‑[186], that this ground of appeal by Mr Barclay should be dismissed.
Issue (l) – Whether Mr Barclay should have been found entitled to indemnity from Vero.
I consider that this ground of appeal should be upheld and the matter remitted to the primary Judge for further consideration. I respectfully agree with the reasons of Dowsett J at [187]‑[199].
As each of Dowsett J and Greenwood J have indicated, the making of orders appropriate for the disposition of these appeals is a matter of some complexity. I favour the approach of Greenwood J in order that the parties may have some input to the formulation of the orders. Accordingly, I would make orders of the general kind proposed by Greenwood J requiring the parties to prepare minutes of the orders appropriate to give effect to the reasons of this Court as summarised by Greenwood J at [409], that there be liberty to apply, and that costs be reserved.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Associate:
Dated: 1 September 2017

QUD 924 of 2015
BETWEEN:	INVESTA PROPERTIES PTY LTD ACN 084 407 241 First Appellant
INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390 Second Appellant
AND:	ASHLEY COLIN NANKERVIS First Respondent
ADAM KIMBERLY BARCLAY Second Respondent
OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230 Third Respondent
AND BETWEEN:	ADAM KIMBERLY BARCLAY Cross-Appellant
AND:	INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390 First Cross‑Respondent
OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230 Second Cross‑Respondent

Appeal from:	Investa Properties Pty Ltd v Nankervis (No 7) [2015] FCA 1004; (2015) 333 ALR 193
File numbers:	QUD 923 of 2015 QUD 924 of 2015 QUD 925 of 2015 QUD 1002 of 2015
Judges:	DOWSETT, GREENWOOD AND WHITE JJ
Date of judgment:	1 September 2017
Catchwords:	EQUITY – consideration of the principles deriving from the authorities and extensive academic writing, to be applied in determining whether in all the circumstances a person or entity owes fiduciary obligations to another – consideration of the coherent body of law developed by Equity in identifying “certain and distinct” obligations which define their own “fiduciary” for their own respective purposes – consideration of whether, upon analysis of the facts, a person or entity has assumed obligations to another or undertaken to act in the interests of another giving rise to fiduciary obligations owed to that other – consideration of the content of the duties owed in all the relevant circumstances – consideration of those matters in the context (among other contexts) of contended obligations owed by an employee of one company within a group of companies, to another asset owning company within the group, not the employer of the employee – consideration of whether a person or entity owing fiduciary obligations to another has a continuing obligation, beyond the termination of the relationship, to make disclosures required to be made to that other as an aspect of the content of the fiduciary obligations assumed by that person CORPORATIONS – consideration of whether the knowledge of a particular senior employee of a company providing real estate agency services is to be regarded as knowledge of the company – consideration of whether the company had a duty of disclosure of the relevant matters falling within the knowledge of the employee – consideration of the employee’s duty of disclosure – consideration of the company’s duty of disclosure having regard to its state of knowledge imputed to it PRACTICE AND PROCEDURE – consideration of the remedies arising out of contended breaches of fiduciary duty and other contended causes of action – consideration of the need to frame the relevant declarations so as to identify the relevant conduct with some precision – consideration of questions of remittal of particular matters to the primary Judge – consideration of matters to be decided by an appeal court in circumstances where that court has taken a different view on factual questions to that of the primary Judge – consideration of the observations of the High Court in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550 at [43] CONTRACTS – consideration of the relationship between contractual obligations and circumstances giving rise to fiduciary obligations REAL PROPERTY – consideration of the relationship between a real property asset owning entity within a group of companies carrying on property development projects and an entity appointed to provide real estate agency services to entities within the group – consideration of whether a senior representative of the real estate agent entity owed fiduciary obligations and a duty of disclosure to the asset owning entity – consideration of whether the knowledge of relevant matters held by a senior employee is to be knowledge imputed or attributed to the real estate agent entity – consideration of the duty of disclosure of the real estate agent entity – consideration of whether information disclosed to a particular employee of one entity within the group of companies carrying on property development was, in all the circumstances, a discharge of the fiduciary obligation of disclosure
Legislation:	Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Property Agents and Motor Dealers Act 2000 (Qld)
Cases cited:	ABN AMRO Bank NV v Bathurst Regional Council (2014) 309 ALR 445 Anying Group Pty Ltd v Wang [2012] FCA 702 Australian Securities Commission v AS Nominees Limited and Others (1995) 62 FCR 504 Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) (2007) 160 FCR 35 Barnes v Addy (1874) LR 9 Ch App 244 Beach Petroleum NL v Johnson (1993) 43 FCR 1 Blair v Martin [1929] NZLR 225 Bristol and West Building Society v Mothew [1998] Ch. 1 Carr v Finance Corporation of Australia Ltd(No 1) (1981) 147 CLR 246 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 Conway v Raitu [2005] EWCA Civ 1302; [2006] 1 All ER 571 Diamantides v JP Morgan Chase Bank [2005] EWCA Civ 1612 Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 306 ALR 25 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 John Alexander’s Clubs v White City (2010) 241 CLR 1 Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 Lifeplan Australia Friendly Society Ltd v Woff [2016] FCA 248 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited [2017] FCAFC 74 Longstaff v Birtles [2001] EWCA Civ 1219; [2002] 1 WLR 470 Manildra Laboratories Pty Limited v Campbell [2009] NSWSC 987 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 NZI Securities Ltd v Poignard (1994) 123 ALR 11 Powell & Thomas v Evan Jones & Co [1905] 1 KB 11 Re Coomber [1911] 1 Ch 723 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550 Tag Pacific Pty Ltd v McSweeney (1992) 34 FCR 438 Tate v Williamson (1866) 2 Ch. App. 55 (L.C.) Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Yong Internationals Pty Ltd v Gibbs [2011] QCA 161
Date of hearing:	1, 2 and 3 March 2016
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	421
In QUD 923 of 2015:
Counsel for the Appellant:	Mr A Collins and Mr J Trost
Solicitor for the Appellant:	Carter Newell Lawyers
Counsel for the First Respondent:	Mr D Murr SC and Ms M Painter QC
Solicitor for the First Respondent:	Lander & Rogers Lawyers
Counsel for the Second Respondent:	Mr K Barlow QC with Ms B O’Brien
Solicitor for the Second Respondent:	Warlow Scott Lawyers
In QUD 924 of 2015:
Counsel for the First and Second Appellants and First Cross‑Respondent:	Mr D Murr SC and Ms M Painter QC
Solicitor for the First and Second Appellants and First Cross‑Respondent:	Lander & Rogers Lawyers
Counsel for the First Respondent:	The First Respondent appeared in person
Counsel for the Second Respondent and Cross‑Appellant:	Mr K Barlow QC with Ms B O’Brien
Solicitor for the Second Respondent and Cross‑Appellant:	Warlow Scott Lawyers
Counsel for the Third Respondent and Second Cross‑Respondent:	Mr A Collins and Mr J Trost
Solicitor for the Third Respondent and Second Cross‑Respondent:	Carter Newell Lawyers
In QUD 925 of 2015
Counsel for the First and Second Appellants:	Mr D Murr SC and Ms M Painter QC
Solicitor for the First and Second Appellants:	Lander & Rogers Lawyers
Counsel for the First Respondent:	The First Respondent appeared in person
Counsel for the Second Respondent:	Mr K Barlow QC with Ms B O’Brien
Solicitor for the Second Respondent:	Warlow Scott Lawyers
Counsel for the Third Respondent:	Mr A Collins and Mr J Trost
Solicitor for the Third Respondent:	Carter Newell Lawyers
In QUD 1002 of 2015:
Counsel for the Appellant:	Mr K Barlow QC with Ms B O’Brien
Solicitor for the Appellant:	Warlow Scott Lawyers
Counsel for the First and Second Respondents:	Mr A Collins and Mr J Trost
Solicitor for the First and Second Respondents:	Carter Newell Lawyers

QUD 925 of 2015
BETWEEN:	INVESTA PROPERTIES PTY LTD ACN 084 407 241 First Appellant
INVESTA RESIDENTIAL GROUP PTY LTD ACN 098 527 390 Second Appellant
AND:	ASHLEY COLIN NANKERVIS First Respondent
ADAM KIMBERLY BARCLAY Second Respondent
OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230 Third Respondent
QUD 1002 of 2015
BETWEEN:	ADAM KIMBERLY BARCLAY Appellant
AND:	OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD ACN 128 863 230 First Respondent
VERO INSURANCE LIMITED ABN 48 005 297 807 Second Respondent
JUDGES:	DOWSETT, GREENWOOD AND WHITE JJ
DATE OF ORDER:	1 SEPTEMBER 2017