Olliver, Brian v Heap, John

[1996] FCA 606

CATCHWORDS

TORT - negligence - breach of fiduciary duty - breach of duty of care in relation to professional legal advice - conflict of interest - solicitor to profit from transaction personally -history of business and professional relationships between solicitor and client - sufficient proximity to establish solicitor/client relationship and a breach of duty.

PRACTICE AND PROCEDURE - appeal form a single judge - trial judge's findings depend to a substantial degree on credit and demeanour - findings accord with probabilities - findings open to the trial judge on the evidence - no error of law in finding the existence of a duty and its breach, or a caused relationship between loss and negligent conduct - appellate court not to interfere with the exercise of wide discretion by the trial judge except in the clearest possible case.

Devries v Australian National Railways Commission (1993)
177 CLR 472, applied

Buckland v Macksey (1968) 112 Sol. Jo 841, applied

Fox v Everingham (1983) 50 ALR 337, cited

Commonwealth Bank of Australia v Smith (1991) 102 ALR 453, cited

Hawkins v Clayton (1988) 164 CLR 539, cited

House v R (1936) 55 CLR 499, cited

McCauley v McCauley (1910) 10 CLR 434, cited

Henderson v Amadio Pty Ltd, unreported, Heerey J, 22 March 1996, cited

Cretazzo v Lombardi (1975) 13 SASR 4, considered

Hughes v Western Australian Cricket Association (1986)
ATPR 40-748, cited

BRIAN OLLIVER v
JOHN HEAP AND JS HEAP CONSTRUCTIONS PTY LIMITED
No NG 172 of 1996

Sheppard, Hill & Tamberlin JJ
Sydney
23 JULY 1996

IN THE FEDERAL COURT OF AUSTRALIA )                 
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 172 of 1996
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF
              THE FEDERAL COURT OF AUSTRALIA

BETWEEN:          BRIAN OLLIVER
  Appellant

AND:              JOHN HEAP
  First Respondent

J S HEAP CONSTRUCTIONS
  PTY LIMITED
  Second Respondent

CORAM:       SHEPPARD, HILL & TAMBERLIN JJ
PLACE:       SYDNEY
DATED:       23 JULY 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

1. The cross-appeal be dismissed with costs.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 172 of 1996 GENERAL DIVISION                  )

ON APPEAL FROM A JUDGE OF
              THE FEDERAL COURT OF AUSTRALIA

BETWEEN:          BRIAN OLLIVER
  Appellant

AND:              JOHN HEAP
  First Respondent

J S HEAP CONSTRUCTIONS
  PTY LIMITED
  Second Respondent

CORAM:       SHEPPARD, HILL & TAMBERLIN JJ
PLACE:       SYDNEY
DATED:       23 JULY 1996

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from a judgment of Davies J concerning a claim for damages by the first and second respondents based on allegations of misrepresentation, negligence and breach of fiduciary duty by the appellant.

The claim relates to loans and investments made by the respondents in relation to four real estate development projects promoted by participants in a development group, known as the "Blue Dolphin Group".…