Spaulding v Adams
[2012] TASSC 61
•4 October 2012
[2012] TASSC 61
COURT: SUPREME COURT OF TASMANIA
CITATION: Spaulding v Adams [2012] TASSC 61
PARTIES: SPAULDING, Michael John
v
ADAMS, Colin Bertram
FILE NO/S: 671/2003
DELIVERED ON: 4 October 2012
DELIVERED AT: Launceston
HEARING DATES: 6, 7, 8 August 2012
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Equity – General principles – Fiduciary obligations – Particular cases – Other cases – Solicitor and client – Whether relationship a fiduciary one.
Breen v Williams (1996) 186 CLR 71; Pilmer v Duke Group Ltd (In liquidation) (2001) 207 CLR 165; Schipp v Cameron [1998] NSWSC 997, followed.
Aust Dig Equity [1064]
Equity – Equitable remedies – Equitable compensation – Breach of fiduciary obligations – Solicitor and client – Conflict of interest and duty.
Aust Dig Equity [1276]
Limitation of Actions – General matters – Statutes of limitation generally – Operations of State statutes in particular actions – Applications for equitable relief – Claim for equitable compensation for breach of fiduciary duties at least 14 years after the events.
Limitation Act1974 (Tas), ss4, 9.
Knox v Gye (1872) LR 5 HL 656; Cia de Seguris Imperio v Heath (REBX) Ltd [2001] 1 WLR 112; Duke Group Ltd (In Liq) v Alamain Investments Ltd [2003] SASC 415; Aussie Ideas Pty Ltd v Tunwind Pty Ltd [2006] NSWCA 286; Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156; Langford v Reddy [2012] NSWSC 289; Candibon Pty Ltd v Minister for Planning [2011] VSC 415, followed.
Aust Dig Limitation of Actions [1006]
Professions and Trades – Lawyers – Duties and liabilities – Solicitor and client - Fiduciary duty – Dealing with client – Whether relationship a fiduciary one.
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, followed.
Beach Petroleum v Kennedy (1999) 48 NSWLR 1; Blythe v Northwood [2005] NSWCA 221, considered.
Aust Dig Professions and Trades [1169]
REPRESENTATION:
Counsel:
Plaintiff: In person
Defendant: P Jackson
Solicitors:
Plaintiff: In person
Defendant: Jackson Tremayne & Fay
Judgment Number: [2012] TASSC 61
Number of paragraphs: 127
Serial No 61/2012
File No 671/2003
MICHAEL JOHN SPAULDING v COLIN BERTRAM ADAMS
REASONS FOR JUDGMENT CRAWFORD CJ
4 October 2012
The plaintiff sued the defendant for equitable compensation arising out of breaches of fiduciary duties.
At all material times the defendant was a legal practitioner employed by a Hobart firm of solicitors, Page Seager. It is the plaintiff's case that the defendant acted for him in relation to four legal transactions, that as a result he owed fiduciary duties to him, and that he breached those duties on each occasion.
The four transactions concerned:
1the purchase by the plaintiff as the nominee of the defendant of land containing a quarry at Old Beach;
2the purchase by the plaintiff from the defendant of land described as lot 7 at Old Beach;
3the sale of the plaintiff's fishing vessel, the Valda S; and
4the sale by the plaintiff of lot 7 to Stephen and Kathryn Knight.
Essentially the plaintiff claims that the defendant owed him fiduciary duties to avoid conflicts between the defendant's duty to the plaintiff as his solicitor and the defendant's own interests, and/or the defendant's duty to another client, that he breached those duties, and that the plaintiff suffered a loss on each occasion.
For the reasons I now give, I have concluded that the plaintiff's action should be dismissed.
Some background facts concerning the plaintiff
The plaintiff was a commercial fisherman. His fishing vessel, the Valda S, was operated by him in partnership with his wife. However, by 1985 he had ceased operating the vessel personally and leased it to a Mr Wignall. He had decided to leave the fishing industry. He had problems with his legs. According to the defendant the plaintiff had contemplated farming fish and may also have been farming. It was put to the plaintiff in cross-examination that he only leased the Valda S to Mr Wignall pending him finding a purchaser for the vessel. His response was that he did not know, I infer because he could no longer remember. It is a significant feature of the case that the events occurred about 25 or more years ago and the respective memories of witnesses have been sorely affected as a result.
As an employee of Page Seager, the defendant had acted as the plaintiff's solicitor on a number of occasions for possibly three years. The defendant's unchallenged evidence was that the matters ranged from the sale of property and assets, a possible development of what was described by the defendant as a water-based fishing enterprise, claims for the unpaid price of goods and prosecutions for speeding and offences under the Fisheries Act. I infer that they were on very friendly terms with each other.
The purchase by the defendant and others of land at Old Beach
By a written agreement bearing the date 31 December 1984, Compton Pty Ltd agreed to sell to a number of people, including the defendant and his wife, a farming property at Old Beach containing 766.5 acres (310.2 hectares). Most, but not all, of the purchasers were married couples and it was provided by the agreement that between them they would take one or more of nine lots, into which the property was to be divided, excluding thereout a rectangular area described as public open space, which Mr Adams said in evidence was a rocky feature called Gunners Quoin and reserved for wildlife.
One section of that land was almost square in shape and contained 499.9 acres (202.3 hectares). I will refer to it as 500 acres. The other section of the land had four sides of different dimensions and its area was 266.4 acres (107.8 hectares). It has been referred to as lot 9. The agreement provided that the 500 acres would be divided into eight lots, being lots 1 to 8. The approximate boundaries of lots 1 to 8 were drawn on the title plan attached to the agreement. Attached to these reasons is a copy of that plan showing the proposed division of the eight lots and the public open space in the 500 acres. The evidence made it clear that the boundaries shown on the plan were indicative only. I understand that the winding line drawn on the plan from the north western corner to near the south eastern corner of the land indicated the approximate route of a road that was proposed to be constructed to access the various lots.
It was provided by the agreement that the defendant and his wife, or their nominee, would take lot 8 and that their daughter, who was aged only about 7 years, or her nominee, would take lot 7. The other lots were allocated to other purchasers. The purchase price was $96,000 and a deposit of $30,000 was payable. The original proposal for which provision was made in the agreement with Compton Pty Ltd, was that before settlement of the purchase, title to each of the lots had to issue, and on settlement, each would be transferred to those who were to take those lots. It was provided by cl 3 that the contract was to be completed within four days of the acceptance by the Recorder of Titles of a plan for the issue of the titles to the lots. Clause 14 provided that the contract was subject to acceptance by the Recorder of a plan of subdivision.
Between the purchasers, the defendant was put in charge of settling the boundaries of the eight lots to be subdivided out of the 500 acres, of arranging the subdivision and completing the contract and necessary road works.
To better understand what the purchasers agreed among themselves, I set out what cl 18 of the agreement provided:
"Each of the Purchasers described in the Third Schedule agree amongst themselves that they are to take the Lot indicated beside their name and are to pay a one-eighth (1/8) proportionate cost of all land and roadworks surveys, hydro installation and miscellaneous and other development costs (Lot 9 is valued at $15,000.00 and is not to pay a proportion of such costs for the development works end at the meeting of the road and Lot 1). The Purchasers also acknowledge that the precise location of boundaries to their respective Lots is yet to be established by survey and also agree that this function is to be at the sole and unfettered discretion of Colin Adams who, when establishing such boundaries shall have regard to the boundaries as already discussed between the Purchasers as a group. Colin Adams is to have the sole and unfettered discretion as to selection of a surveyor, a road builder, positioning of the roadway and choice of any person necessary to complete developmental and other works towards an ultimate completion of this Contract."
It can be seen from cl 18 that it was anticipated that costs would be incurred in developing the subdivision. Those costs were to be shared between the purchasers of the respective lots, particularly those who were to purchase lots 1 to 8. What the purchaser of lot 9 was to contribute is not altogether clear, but it is not material. Nor is it clear from the agreement what the purchaser of each lot was to pay towards the overall purchase price of $96,000, but that is not material either. However, I note that in a letter dated 4 November 1992 from the defendant to the Law Society, he said that they "equally shared the original purchase price of the land and the associated road and hydro costs, and any other charges".
The original purchasers intended to build homes on their respective lots once their lots had been transferred to them. However before settlement it was agreed among them that they would follow a different course. It was that there would be a staged rural stratum title development.
According to the defendant's unchallenged evidence, the reason for the change was that the cost of constructing a 1.6 kilometre road through the development became prohibitive. The local council would have required it to be sealed with kerb and guttering along its entire length. The proposed owners had anticipated that the road would merely be a typical rural gravel road. To avoid the cost of the road the council would have required, they decided to proceed with the staged rural stratum title development which would require only a gravel road. All of the land would be transferred by Compton Pty Ltd to all of the purchasers as tenants in common and once one had built his or her home on the lot intended to be taken, a stratum title would issue with respect to it.
The new proposal was submitted to the council for approval at its meeting on 12 December 1985. The council's minutes recorded that the municipal engineer had reported that the intent of the stratum subdivision was to create an eight lot rural subdivision on the lines previously approved by council but with all responsibility for the maintenance of the access road resting with the body corporate of the stratum company. The engineer stated that although it was an unconventional approach to rural subdivision, it offered an advantage to the council that it would not be responsible for the continued maintenance of the access roadway. It was intended that the road would "dead end" at the boundary of the public open space area of Gunners Quoin. The engineer said that it was possible to stage a stratum subdivision which would allow for the sequential development of the allotments, but if at a later date the members of the stratum company chose to subdivide in a conventional manner, it would still be possible for the council to impose conditions to ensure the construction of the road to council standards. The engineer considered that what was proposed would delay council expenditure on road maintenance, have no additional impact on land use, and would assist in protecting Gunners Quoin. The engineer considered it acceptable.
Based on that report, the council decided in principle that the staged rural stratum title proposal could proceed provided that public access to Gunners Quoin was protected, and provided that it could be proven to the satisfaction of council that the access road through the lots would not be considered a council road and, as such, the council would have no responsibility for its construction or maintenance.
The staged rural stratum title development was explained further in a valuation report dated 27 March 1986, which was obtained by the plaintiff in relation to lot 7. I will refer to some of what it stated in due course.
The purchasers proposed that the eight lots would be serviced by the gravel road, which the defendant would arrange to be constructed. It would enter the 500 acres at the north western corner and proceed in a generally diagonal direction, but not in a straight line, towards the south eastern corner, terminating short of it at about the boundary of the public open space area of Gunners Quoin. Lots 1 to 5 would be south of the road and lots 6 to 8 would be north of it.
As a consequence of the changed course, by transfer B23927 dated 24 December 1995, and registered on 22 May 1986, Compton Pty Ltd transferred the 500 acres (and not the proposed lot 9) for $81,000, being the original consideration of $90,000 less $9,000 to be paid separately for lot 9. The transfer provided for the transferor's estate in fee simple in the 500 acres to be transferred to those who were the purchasers in the agreement dated 31 December 1984, with one exception, which was that the defendant's name replaced that of his daughter.
Upon that transfer being registered, certificate of title volume 4270 folio 50 was issued for the 500 acres. The registered proprietors were those named as the transferees in the transfer. The title recorded that they held the fee simple in undivided one-eighth shares as tenants in common. One such share was held by the defendant and his wife "jointly as between themselves". Another such share was held by the defendant alone (in the place of his daughter).
I find that there existed an arrangement between the registered proprietors that as originally agreed, they would be entitled to the lot originally allocated to them (but with the defendant replacing his daughter), subject to the boundaries of the lots being precisely determined. It was also their arrangement that they would each build a home on the lot allocated to them and that when they had done so, a stratum title for the lot would issue to them. A possible exception to that last-mentioned aspect concerned the defendant or the defendant and his wife. Between them they were to acquire lots 7 and 8. There is evidence that they intended to erect a home for themselves on lot 8, which they subsequently did, but there is no evidence about what they intended to do with lot 7.
I infer that the transfer to the transferees as tenants in common in one-eighth shares in all of the 500 acres, was considered by them at the time to be the only practicable course for them to follow.
The defendant's proposed purchase of the quarry at Old Beach
Approximately 1.5 kilometres from the 500 acres was land containing a quarry that was no longer being worked. It was the defendant's evidence that in 1984 he entered into a contract to purchase the quarry land for $9,000, the contract identifying him or his nominee as the purchaser. His unchallenged evidence was that the contract was entered into because he and his fellow purchasers of the 500 acres wanted to obtain gravel from the quarry for the completion of the development of their designated lots, including the access road. The contract to purchase the quarry has been lost over the passage of time.
The plaintiff's purchase of the quarry
The plaintiff's evidence was that he was in the defendant's office prior to Christmas 1985. The defendant had learned that the plaintiff owned a D4 bulldozer and asked if he would be interested in widening a road for him at Gunners Quoin at an hourly rate of payment. I presume that that was a reference to the access road through the 500 acres. The plaintiff agreed to do the work and commenced to do so shortly after Christmas. However he found that his bulldozer was inadequate for what the job required and replaced it with a Caterpillar 977 Traxcavator, which he purchased, and he then finished widening the road.
The plaintiff's unchallenged evidence was that when the work finished, he asked the defendant if he could purchase the quarry land. He agreed that he asked that in January, February or March 1986. I infer that he had learned that the defendant had a contract to purchase that land. His evidence was that he was "starting to get a little bit of money" and he thought that the quarry would be a reasonable investment for him. The defendant agreed that he could purchase it in his place as his nominee. In par6 of the statement of claim, the plaintiff pleaded that the defendant sold the quarry land to him. That was incorrect, of course, for what the defendant did was nominate the plaintiff and his wife as purchasers in his place.
In evidence is the transfer of the quarry land B37750 dated 21 March 1986 and registered 5 May 1986 from the owners, Virginia Koster and Lynley Cox, to the plaintiff and his wife. Also in evidence is the quarry's certificate of title volume 2806 folio 40, which records that on 5 May 1986 the plaintiff and his wife were registered as proprietors of the land. The defendant acted as their solicitor in the completion of the purchase. The state of the evidence is that at no time did he suggest to the plaintiff that he should seek independent legal advice in relation to his purchase of the quarry. The defendant perceived no need to do so.
In par7 of the statement of claim, the plaintiff pleaded that the consideration for his purchase of the quarry land was a waiver by him of his charges for the road work. He gave no evidence of that, and it is contrary to the statement in the transfer that he and his wife paid a consideration of $9,000 to the transferors. The defendant's unchallenged evidence was that the payment (or $8,657 of it) was made out of moneys the purchasers of the 500 acres owed to the plaintiff for the road work.
In par8a of the statement of claim, the plaintiff pleaded that the defendant, in his capacity as his legal practitioner in the purchase of the quarry land, "withheld information about the zoning, development and planning restrictions attached to the use of the land as a quarry, including the requirement to establish a 300 metre buffer zone around any quarry". The plaintiff called no evidence that the defendant did so.
The plaintiff's evidence about the matter was difficult to follow. It was:
"So anyway we done the job … completed the roadworks, your Honour, and – but when the quarry, when I purchased the quarry from Colin and when I – because in relation to the quarry it wasn't under continuous use therefore its right and entitlement to act as a quarry you couldn't do it. What you had to do was put – they wanted me to put a 300-metre buffer zone. That was one expense that I didn't take into account and one Mr Adams didn't inform me about either. Whether he had a duty to I don't know but he did act as my lawyer and I thought being my lawyer he would look after my interests in that respect. But anyway, I was very lucky because there was 66 acres available from Fouche's estate. I put in a tender for it to their solicitors – and this is pretty early in the piece, for one hundred and forty thousand dollars. As soon as I got the land – it was beautiful real estate."
In answer to questions from me, he said that his tender for the Fouche land was accepted, that he became its owner and that the land adjoined the quarry. His evidence continued:
"I thought to myself – see, I got the idea from Colin, I thought what he was doing up there subdividing the land and this looks all right, I wouldn't mind having a go at this, and so I was quite happy to go into that sort of thing because with the fishing you only work – I only worked the summer months because that's all I had to work. I just earned enough that I wanted at that particular time because the more you earned the more tax you have got to pay and I was quite happy with what I could earn in four months and I thought to myself this would be a nice winter job when I'm home and develop the land."
Nothing was asked of the defendant when he gave evidence that was relevant to the allegation in par8a of the statement of claim. There was no evidence whatsoever that he had the information in question and withheld it, nor evidence suggesting that he should have had the information. In the first passage of the plaintiff's evidence above, he said that "they wanted me to put a 300-metre buffer zone". He did not explain who "they" were, nor did he give any other evidence about the required buffer zone.
In par9 of the statement of claim, the plaintiff pleaded that by reason of the defendant withholding information, he was in breach of a fiduciary duty. Because the plaintiff has failed to prove that the defendant did withhold the information, it must follow that he has also failed to establish that the defendant was in breach of a fiduciary duty.
I add that in par10a of the statement of claim, the plaintiff asserted that he suffered loss and in particular, "due to the undisclosed planning restrictions, the Plaintiff was required to establish a buffer zone around the quarry at a cost of $120,000". There was no evidence of that expenditure or loss. In fact, if the plaintiff was intending to refer to his purchase of the Fouche land adjacent to the quarry land, the evidence suggests that he made a profit out of his purchase. On 27 March 1986, he was provided with a valuation of that land by McNamara Wells & Associates, valuers, for $150,000, whereas he was able to purchase it for $140,000, making an immediate profit, based on the valuation, of $10,000.
I find that he came to a decision that he could profit from buying that adjacent land, not only by purchasing it at a price that was less than its value, but also from a later subdivision of it.
There would appear to be significance in evidence he gave in cross-examination that he did not tell the defendant that he was interested in purchasing that adjacent land. I infer that he saw a profit in acquiring it and he wanted to keep that to himself. He added, "I didn't think it was any of his business".
For all of those reasons, the plaintiff's claim to equitable compensation because the defendant withheld the information referred to in par8a of the statement of claim must fail. On the evidence, there is no merit in it.
By par8b of the statement of claim, the plaintiff alleged that the defendant imposed a condition on the transfer of the quarry land that the plaintiff provide the defendant with red gravel at a reduced price for an indefinite period of time. By par9 he asserted that by doing so, the defendant breached a fiduciary duty he owed to the plaintiff. By par10b, he asserted that as a result of that breach, the defendant pressured him to continue to provide red gravel below cost price.
There was no evidence that the defendant imposed a condition on the transfer that the plaintiff would provide gravel at a reduced price. For that reason alone, the claimed basis for compensation must fail.
The plaintiff did give evidence as follows:
"We negotiated certain terms and conditions which was that we would supply the gravel to the – I thought that was fair and reasonable – until such time that the job was finished and that was the basis of the agreement, that I complete – putting metal on the road and after that I would help or do work for the other co-owners but the contract was open."
There was no evidence given that a reduced price was agreed or that a price was agreed that was less than some rate usually charged. However, it was the plaintiff's evidence that he charged an agreed amount of $2 a cubic yard for gravel he supplied to the defendant, and it was also his evidence that he was not covering costs.
The defendant did not act as the plaintiff's solicitor for the purposes of all of the plaintiff's business transactions. In particular, he was not instructed by the plaintiff to provide advice to him concerning whether he should or should not purchase the quarry, or should or should not supply the gravel to the defendant, and if he did, the price he should charge for doing so. In those regards they were merely two businessmen dealing with each other. The defendant acted as the plaintiff's solicitor for the purpose of completing the purchase of the quarry land from Virginia Koster and Lynley Cox. In the course of acting as the plaintiff's solicitor in that transaction, the defendant owed a duty not to allow his own interests to conflict with the plaintiff's interests, but the acquisition of gravel by the defendant from the plaintiff did not breach that duty.
I add that no evidence was given by the plaintiff of what he lost. The only evidence he gave was that he was not covering costs. The state of the evidence is such that it is impossible to assess the amount of any loss the plaintiff may have suffered.
For all those reasons, the plaintiff's claim for equitable compensation because the defendant imposed a condition requiring the plaintiff to supply him with gravel at a reduced price must fail.
The plaintiff's purchase of lot 7
The plaintiff's evidence was that the defendant asked if he would be interested in purchasing lot 7. The defendant's evidence was that the plaintiff approached him and asked if he would consider selling lot 7. The issue of who approached the other is immaterial, and having regard to the passage of 26 years since then, I have insufficient confidence in the memory of either of them to make a finding about the matter. It is clear that the plaintiff decided that he wanted to buy lot 7 and it seems that possibly after hesitating briefly about the question, the defendant was also interested in selling it to the plaintiff. Having regard to the intention of the defendant and his wife to erect a house on lot 8, it might be thought that lot 7 was surplus to their requirements.
The discussions about whether the defendant would sell his lot 7 interest to the plaintiff must have commenced in the first three months of 1986 and very possibly before the end of February. The evidence established that neither of them knew what the defendant's interest was worth, and the defendant suggested to the plaintiff that he obtain a valuation. The plaintiff said he would do so and engaged Mr A D Jessup of McNamara Wells & Associates Pty Ltd to make the valuation. The valuation report is addressed to the plaintiff at his Nubeena address. It is dated 27 March 1986. It states that Mr Jessup inspected the land on 19 March 1986 and that he had been instructed by the plaintiff. The valuation was $47,500.
In the course of the report, Mr Jessup provided the plaintiff with quite an amount of information about what he would be purchasing. He stated that the title was in the name of Compton Pty Ltd but was subject to a priority notice with regard to a transfer to the defendant and 12 others. The land was described as part of certificate of title volume 2321 folio 67, and it was noted that it was "proposed to issue separate Title in the form of a Staged Rural Stratum Title".
In the course of describing the lot, Mr Jessup stated:
"The site is to comprise an irregular shaped parcel of land with an area of approximately 20ha. Approximate boundaries and dimensions are shown on the photocopy of the Sketch Plan of Subdivision enclosed with this report."
I will return later to an issue between the parties concerning whether it was represented to the plaintiff by the defendant that lot 7 would have an approximate area of 20 hectares (50 acres). Enclosed with the report was a sketch plan of part of the 500 acres which, based on my experience, I infer was prepared by a surveyor. It purported to show lot 5 (seemingly lot 4 on the drawing on the title plan attached to the agreement dated 31 December 1984) and lots 6, 7 and 8, the public open space of Gunners Quoin, the access road through the 500 acres, and some of the other parts of the land. The designated boundaries of the lots, and particularly those of lot 7, were in some respects similar to, but not identical with, how they were drawn earlier. The site was described as a balance of improved pasture and natural bush and zoned Rural by the Brighton Municipal Council.
Mr Jessup gave notice of a likely delay before title to an individual lot might be issued. He said:
"It is proposed that the subject property will eventually attain Progressive Stratum Rural Title as part of Certificate of Title Volume 2321 Folio 67. Although not requiring the lodgement of an approved and sealed subdivision plan, the issue of separate Title would be subject to significant delays due to the necessity of fulfilling requirements for the issue of a Stratum Title to the separate parcels. Stratum Title would not be issued for the proposed separate lots until such time as residential development has occurred on individual lots and a Stratum Plan of the dwelling has been lodged and approved by the relevant authorities."
Later in the report, Mr Jessup made the point that as a separate title would not be issued until the completion of a building on the land and the approval of a Stratum Plan, it would not be possible to register a mortgage against the subject property in the normal way.
Having received the valuation, the plaintiff offered the defendant $45,000. According to the defendant, the plaintiff told him that the land had been valued in that amount and did not show him the report. According to the plaintiff, he did offer $45,000 but only after he showed the defendant the report. It is unnecessary to resolve the dispute. It is agreed that the defendant orally agreed to accept $45,000 for his interest in lot 7.
The defendant and Mr and Mrs Spaulding signed an agreement for sale, I infer without much delay for there is no evidence of a reason to delay it. The agreement was drafted by the defendant. It appears to be a standard form of contract, one which I think likely to have been published by the Law Society of Tasmania. It provides for a consideration of $45,000, with no deposit. The defendant agreed to sell to Mr and Mrs Spaulding "All the Vendors [sic] property known as Lot No 7 on CT Vol 4270 Fol 50 and his interest therein".
The agreement bears as its date 1 November 1988 in the defendant's handwriting, but it is agreed by the parties that it was signed a long time before that. I regard it as likely that it was left undated after being signed in about April 1986, for there is no evidence to suggest a reason for delaying the signing of the agreement once the valuation report dated 27 March 1986 had been received by the plaintiff and the parties had agreed on the price. I also have regard to my experience that it is usual practice once a vendor and purchaser have agreed orally, that a written agreement is prepared and signed by them.
The plaintiff's evidence was that the agreement was signed on 1 November 1986. He gave no reason for fixing that date. I do not accept his evidence about the matter. I suspect that all he did was deduct exactly two years from the date written on the agreement itself, 1 November 1988. I add that it is not a fact that needs to be determined, as nothing that is material depends on it.
The defendant offered to act as the solicitor for the plaintiff and his wife in the completion of the purchase, free of charge, and subsequently did so. The state of the evidence is that at no stage between them reaching agreement about the purchase and its completion did the defendant suggest to the plaintiff that he obtain independent legal advice. The defendant's evidence was that he perceived no need to do so.
In October 1986, the plaintiff and his wife entered into a contract to sell their fishing vessel, the Valda S, and their commercial fishing licence, for $250,000. The sale was completed with the payment of the purchase price to the defendant in his capacity as their solicitor, on or about 10 December 1986. $45,000 of the payment was applied by the defendant on behalf of the plaintiff and his wife in paying the purchase price they owed for the defendant's interest in lot 7. Almost all of the remaining balance of the sale proceeds was applied by the defendant, on behalf of Mr and Mrs Spaulding, in discharging mortgages they had given to Westpac and the Commercial Development Bank. A statement accounting for the application of the vessel's sale price was sent to Mr and Mrs Spaulding on 10 December 1986.
However, the transfer of the defendant's interest in lot 7 to the plaintiff and his wife bears 20 December 1988 as its date and it was not registered until 25 January 1989. An issue raised at the trial concerned the reason for the two year delay in effecting the transfer. The defendant's evidence, and he was firm and unswayed about the matter, was that the plaintiff asked him to delay lodging the transfer for registration because he did not want his bankers to know that he had acquired the interest in the property. I note that there was a body of evidence that the plaintiff had many debts, including loans from more than one bank. The defendant's evidence continued that it was only when the plaintiff and his wife subsequently sold their interest in lot 7 to Mr and Mrs Knight, and the consequent transfer was about to be registered, that he dated the agreement between him and Mr and Mrs Spaulding and completed the sale to them by registering the transfer, which was dated 20 December 1988 and registered on 25 January 1989. Shortly after that, the transfer from Mr and Mrs Spaulding to Mrs Knight, also dated 20 December 1988, was registered on 16 March 1989.
The plaintiff called the defendant as his witness but from time to time in his examination-in-chief he cross-examined the defendant without objection. In the course of doing so, he put to the defendant:
"I believe the reason why the memorandum of agreement is dated the 1st of November 1988, … is because you knew at the time when you sold Lot 7 to the Spauldings that you could not fulfil the contractual arrangements?"
The defendant's response was that was entirely wrong. Shortly after, the plaintiff put to him a different proposition:
"… that the reason why you dated the documents the way you did is for a very simpler reason: that anybody, any other solicitor acting for the Spauldings would look at those documents and see that under common law if I was to take action against you, right, the Spauldings never suffered as loss. … And would come to the conclusion that the Spauldings were the owner of your rights, title and interest for one day."
The defendant rejected the suggestion. I do not find either proposition has been established as a fact. The evidence does not justify such a finding.
The transfer from the defendant to Mr and Mrs Spaulding was expressed to transfer "all the Transferors right title and interest as tenant in common" and the description of the land was expressed as certificate of title volume 4270 folio 50, with the additional words "Lot 7 Baskerville Road, Old Beach". The transfer from Mr and Mrs Spaulding to Mrs Knight was identical in those regards.
By par15 of the statement of claim, the plaintiff pleaded that the defendant agreed to sell part of the 500 acres "comprising 50 acres and referred to as Lot 7". At the trial the plaintiff maintained, and he put it to the defendant when he was giving evidence, that 50 acres was the area agreed to be sold by the defendant and was represented to be the area of lot 7. The defendant took issue with those propositions.
The evidence does not justify a finding that it was agreed between the plaintiff and the defendant that the area of lot 7 was, or would be, 50 acres. Further, I find that the defendant did not represent that the area was or would be 50 acres.
There was no mention of 50 acres in the agreement for sale of the defendant's interest in lot 7 to Mr and Mrs Spaulding. In addition to that, in cross-examination the plaintiff conceded that the defendant did not represent to him that there would be 50 acres. He accepted that all he was told by the defendant was that it would be a requirement with the progressive rural stratum title development that the average size of all of the lots be 50 acres. The plaintiff conceded that when he instructed Mr Jessup to value the property, he informed him that lot 7 comprised 50 acres. I conclude that as a result, Mr Jessup's valuation report stated that the area of lot 7 was approximately 20 hectares.
What was transferred by the defendant to Mr and Mrs Spaulding (and then by Mr and Mrs Spaulding to Mrs Knight) was not lot 7 itself but the vendors' right, title and interest as tenant in common in certificate of tile volume 4270 folio 50, with a notification on the transfer, immediately following a reference to the certificate of title, that it concerned lot 7 Baskerville Road, Old Beach. The certificates of title to the 500 acres, once those transfers had been registered, are not in evidence, but I presume that the purchasers of the interest in lot 7, first Mr and Mrs Spaulding from the defendant, and from them, Mrs Knight, came to be described on the title as holding a one-eighth share as tenants in common with all the other registered proprietors. There appeared to be no dispute about that at the trial.
I also presume that the certificates of title to the 500 acres at no relevant time contained a reference to lot 7, or any of the other lots into which it was proposed to be divided into stratum titles. So far as the title was concerned, all of the registered proprietors were tenants in common with the others in all of the 500 acres. Their rights to a particular lot, and their other rights as between each other, and their liabilities as between each other, depended very much on the separate agreement they had with each other, or to which, by virtue of the transfer to them, they became a party or became bound.
There was no evidence at the trial as to the area of the land depicted as lot 7 in the plan attached to the agreement dated 21 December 1984 (and to these reasons), by which Compton Pty Ltd agreed to sell the 766.5 acres to the defendant and a number of other people. Nor was there any evidence at the trial as to the area of the land depicted as lot 7 in the plan attached to Mr Jessup's valuation of 27 March 1986.
The plaintiff accepted in evidence that prior to agreeing to purchase the defendant's interest in lot 7 he had visited the land many times. He also accepted that there were fences that appeared to depict some of the boundaries of the lot, but his evidence about which of the boundaries were so depicted was unclear.
For the reasons I have given, I do not find that the defendant agreed with the plaintiff, or represented to him, that lot 7 would contain 50 acres.
It was the evidence of Mrs Knight, now Thureau, that she did not obtain a separate title to lot 7 for 13 years. Her title was not in evidence, but I presume that eventually the area and boundaries of lot 7 came to be in accordance with Sealed Plan 130998 dated to be effective from 28 June 1999, which became an exhibit at the trial. It shows lot 7 to contain 15.23 hectares (37.86 acres). However its boundaries appear to be markedly different than those originally proposed when the plaintiff agreed to acquire an interest in the land, and for that reason the evidence does not assist the plaintiff.
By par21 of the statement of claim the plaintiff asserted that the defendant threatened him with legal action if he did not proceed with the purchase of lot 7. Earlier, I rejected the plaintiff's evidence that the written agreement was signed on 1 November 1986, and found that it was likely to have been signed earlier, probably in about April 1986. The plaintiff's evidence was that, probably by about June or July 1986, he had decided that he did not want to proceed with the purchase. He said that his reason was that by then his tender to purchase from Fouche's estate the 66 acres adjoining the quarry for $140,000 had been accepted and he could not raise the money ($45,000) he had agreed to pay for the defendant's interest in lot 7. His evidence was that the defendant said he would sue him, that he decided to call his bluff about the matter, but notwithstanding, he reluctantly decided later to sell the Valda S and use the proceeds of its sale to pay the defendant for lot 7.
The defendant denied in evidence that he threatened to sue the plaintiff and I do not find that he did so. It is another example of evidence about conversations said to have occurred over 25 years ago, and I can have little confidence concerning claims to memories of them.
It was also the plaintiff's evidence that when the defendant threatened to sue him, the written agreement to purchase lot 7 had not been entered into, for it was not signed until 1 November 1986. I repeat that I do not accept that assertion.
There was another passage of evidence from the plaintiff that seemed to conflict with his claim that he decided he did not want to go ahead with the purchase of lot 7 because he could not raise the money for it. It was to the effect that when he obtained the 66 acres, he considered it some of the best real estate on the eastern shore, and decided he did not want to build his home on lot 7 and instead would build it on the 66 acres. It was also his evidence that another factor that influenced that decision was that he had planned to place a big shed on lot 7 where he would carry out maintenance work and keep his heavy plant and equipment, something which the defendant told him he would not be able to do because the equipment would cause damage to the subdivision's gravel road.
I accept the plaintiff's evidence that he felt bound to complete the purchase from the defendant notwithstanding that he had lost interest in lot 7 because of his acquisition of the 66 acres. On the balance of probabilities I find that he had by then signed the agreement to purchase the defendant's interest in lot 7.
By par23 of the statement of claim, the plaintiff asserted that the agreement to purchase the defendant's interest in lot 7 was so drawn that he was obliged to settle, notwithstanding that a legal title to lot 7 was not then available. The defendant accepts that to have been the case. The proposal at the time was for the staged rural stratum title development. It follows that what was pleaded in par25 is also correct, that the defendant "could not convey the legal title to lot 7 until the land was subdivided".
By par28, the plaintiff asserted that he was unable to raise mortgage finance to complete the purchase from the defendant. That had been indicated in Mr Jessup's valuation report before he entered into the agreement. However, there is no evidence that the plaintiff attempted to borrow money to complete the purchase.
The sale of the Valda S
The vessel and accompanying licences were owned by the plaintiff and his wife. I mentioned in par[6] of these reasons that by 1985 the plaintiff had decided to leave the fishing industry and leased the vessel to Mr Wignall. In evidence he accepted the possibility that he may have done so pending him finding a purchaser for it. That concession causes me to reject his claim that he sold the Valda S because he needed to raise the necessary money to pay the defendant $45,000 for his interest in lot 7.
An issue raised at the trial was whether the plaintiff placed the vessel for sale with a broker. His evidence was that he did not do so, although he agreed that a broker sued him and his wife for unpaid commission arising out of the sale. In evidence is the statement of claim in the broker's action, which pleaded that in or about October 1985, the plaintiff requested the broker to arrange a sale of the vessel and its associated cray fishing entitlement for $250,000. The sum of $9,920 was claimed by the broker for arranging the sale. The plaintiff's evidence was that he could not remember the outcome of the action. He maintained his denial that he did not retain the broker. Nothing depends on the matter that is material to the outcome of this action and, in any event, I do not decide it because of lack of evidence. What is material is the plaintiff's concession that he may have leased the vessel to Mr Wignall while he waited for a buyer.
By October 1986, purchasers for the Valda S and associated licences for a total of $250,000 had been found by the plaintiff and his wife. The defendant was not involved in arranging that. He was then instructed by the plaintiff and his wife to act as their solicitor in the preparation of the sale agreement and completion of it, and he so acted. In evidence are two agreements drafted by the defendant. They both bear October 1986 as their dates. One was for the sale of the Valda S and its commercial fishing licence for $250,000 to a Mr and Mrs Warren. The other was for the sale of a cray fish pot entitlement and associated pots, buoys and ties to Mr D Summers for $152,000. Earlier I recounted how the $250,000 was applied following completion of the sale to Mr and Mrs Warren.
The defendant also acted as the solicitor of Mr and Mrs Warren in completing the sale to them. The defendant did not suggest to the plaintiff that he seek independent legal advice in relation to the sale of the vessel and licence. The defendant's evidence was that he perceived no need to suggest it. I do not think there is any evidence that the defendant acted for either party in the completion of the sale of the cray fish pot entitlement and associated items to Mr Summers.
The sale of lot 7 to the Knights
I mentioned earlier that it was the plaintiff's evidence that because he was short of cash, he decided to sell lot 7. He said he told the defendant that, and asked how long it would take him to obtain title so that he could sell it. The defendant said it would take six months, he said. I infer that such a conversation, if it occurred, must have been after the payment of $45,000 to the defendant for his interest in lot 7 on or about 10 December 1986.
The plaintiff's evidence was that at some point in his discussions with the defendant, he announced that he would put the property on the market with an estate agent, and two days later, the defendant informed him that Mr Stephen Knight was interested in buying it and suggested that the plaintiff talk to Mr Knight, which he did. Evidence was also given by Mr Knight about the sale. There was little conflict in the evidence, although Mr Knight's recollection was poorer than what the plaintiff claimed to remember.
By an agreement for sale bearing 24 July 1987 as its date, Mr Spaulding agreed to sell to Mr and Mrs Knight "all the Vendors property and interest contained in and known as Lot 7 with reference to CT 4270/50 at Old Beach in Tasmania" for $47,500. The deal was arranged orally between them and there is no evidence that the defendant provided legal services at that time, although he drafted the agreement for sale when instructed to do so.
The plaintiff's evidence was that he showed Mr Knight the valuation report he had received the previous year from Mr Jessup, and they agreed that the Knights would pay $47,500, being the amount of the valuation. However, Mr Knight asked if the plaintiff would finance them for some of the purchase price for 12 months because he was a bit short and needed to sell his existing home. The plaintiff agreed to that. Mr Knight's evidence was that he has no memory of that now, but it is borne out by cl 14 of the agreement for sale. Clause 14 provided that a deposit of $5,000 was to be released to the plaintiff, $20,000 was to be paid to the plaintiff by 31 July 1987, and the balance of $22,500 was to be owed by the Knights to the plaintiff from that date and attract an interest rate equivalent to trading bank interest charged by Westpac from time to time, with final payment to be made at the expiration of 12 months from the date of the agreement.
However, some time after the agreement was entered into, the plaintiff wanted the balance sale price at an earlier date than it appeared he was likely to receive it and he resolved with Mr Knight that in return for reducing the price by $2,500, there would be an early settlement. On that basis, the sale from the plaintiff and his wife to Mrs Knight (Mr Knight was not included in the transfer) was settled for $2,500 less than originally agreed, the transfer being dated 20 December 1988 and registered 16 March 1989. The evidence did not explain why it had taken 17 months to settle since the agreement for sale was entered into.
By par44 of the statement of claim, the plaintiff asserted that the defendant acted as agent for the purchasers, Mr and Mrs Knight. There is no evidence to justify such a finding. The undisputed evidence is that Mr Knight was a solicitor and his firm acted for him and his wife in relation to the purchase from the plaintiff.
By par46 the plaintiff asserted that the defendant acted as his legal practitioner in creating the agreement for sale to the Knights. I find that to be so. It is not pleaded, but I infer that the defendant also acted as his legal practitioner in the completion of that sale, including the transfer to the Knights. At no stage did the defendant suggest to the plaintiff that he seek independent legal advice in respect of the sale to the Knights. The defendant's evidence was that he perceived no need to suggest it.
The claims for equitable compensation for breaches of fiduciary duty
In this action, the plaintiff makes no claim for damages for breaches of any contractual duties owed by the defendant to him arising out of the relationship of solicitor and client, nor does he claim damages for negligence of the defendant arising out of that relationship. If he had claimed damages on either of those bases, there is no doubt he would have failed, if for no reason other than the six year limitation period prescribed by the Limitation Act 1974, s4.
The plaintiff's claim is confined to one for equitable compensation only, and is founded on his assertions that by reason of breaches of fiduciary duties owed by the defendant to him in the defendant's capacity as his solicitor, he suffered loss.
It is well-settled that the relationship between solicitor and client is a fiduciary one and gives rise to fiduciary duties on the solicitor that ensure that the position of trust in which the solicitor is placed is not abused for personal gain or for the gain of others. "In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations — not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed." Breen v Williams (1996) 186 CLR 71 per Gaudron and McHugh JJ at 113; approved in Pilmer v Duke Group Ltd (In liquidation) (2001) 207 CLR 165 per McHugh, Gummow, Hayne and Callinan JJ at 198.
However, care must be taken to determine whether the sued party was in fact acting as a solicitor, and owed fiduciary duties, at the relevant time. The mere fact that the defendant's profession was a solicitor at the time that he dealt with the plaintiff does not mean that he was acting for, or retained by the plaintiff, as a solicitor, or that he owed fiduciary duties and must compensate the plaintiff for his losses, if any, suffered as a result of their dealings with each other.
In Schipp v Cameron [1998] NSWSC 997 at par[665], Einstein J said:
"Let me immediately put to the side one proposition. I would not accept that the mere fact that a person who enters into a joint venture happens to be a solicitor, by itself imposes upon him any of the obligations which may be attracted had he been retained to use his professional ability or training for some purpose related to the joint venture."
Einstein J then cited with approval the following passage from the judgment of Solya J in Sheinkopf v Stone 927 F 2d 1259 (1st Cir 1991):
"Human beings routinely wear a multitude of hats. The fact that a person is a lawyer, or a physician, or a plumber, or a lion-tamer, does not mean that every relationship he undertakes is, or can reasonably be perceived as being, in his professional capacity. Lawyers/physicians/plumbers/lion-tamers sometimes act as husbands, or wives, or fathers, or daughters, or sports fans, or investors, or businessmen. The list is nearly infinite. To imply an attorney-client relationship, therefore, the law requires more than an individual's subjective, unspoken belief that the person with whom he is dealing, who happens to be a lawyer, has become his lawyer. If any such belief is to form a foundation for the implication of a relationship of trust and confidence, it must be objectively reasonable under the totality of the circumstances."
See also Marcolongo v Mattiussi [2000] NSWSC 834 at pars[62] – [67].
Further, notwithstanding that the defendant once acted as the solicitor for the plaintiff in one or more legal transactions, no fiduciary relationship arises merely because subsequently he entered into a commercial dealing with the plaintiff. The fiduciary relationship between solicitor and client comes to an end with the termination of the particular retainer. "Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence." Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 at 235. See also Beach Petroleum v Kennedy (1999) 48 NSWLR 1 at 48 and Blythe v Northwood [2005] NSWCA 221 per Mason P at par[195].
I will deal specifically with the plaintiff's purchase of the quarry land. The defendant had entered into a contract to purchase the quarry so that he and his co-developers would have a nearby source of gravel for the development of the 500 acres. However, the plaintiff asked the defendant if he could purchase the quarry land in the place of the defendant. He had decided that the quarry would be a reasonable investment for him. The defendant allowed him to purchase the quarry land by stepping aside and nominating him as the purchaser in his place.
Although thereafter the defendant acted as the solicitor of the plaintiff for the purpose of completing the plaintiff's purchase of it, at the time the plaintiff asked the defendant if he could buy it, and the defendant agreed, the defendant was not then acting as the plaintiff's solicitor. No fiduciary duties were owed by the defendant to the plaintiff at that time. The plaintiff was not relying on the defendant for legal advice concerning whether he should, or should not, purchase the quarry land. On the evidence, I find that he made his own decision about that, concluded that it would be a good investment and pursued that end. The evidence does not establish that the plaintiff was reliant on the defendant, as his solicitor, to provide him with advice concerning whether he should purchase the quarry.
For these reasons, I find that at the material time they were not in a fiduciary relationship and the defendant owed no relevant fiduciary duties to the plaintiff.
At par[44] I rejected the plaintiff's claim based on his supply of gravel to the defendant for what he asserted was a reduced price.
For the reasons I have given, the plaintiff's claim against the defendant for compensation arising out of his purchase of the quarry land must fail.
There is no need to deal further with the fact that after the purchase, the plaintiff decided to purchase the neighbouring 66 acres from Fouche's estate. The evidence established that he sought no advice about that from the defendant. It did not establish that the defendant knew or ought to have known anything at the time they dealt with each other to suggest that the plaintiff would have to purchase more land.
I add a reference to some evidence about which neither the plaintiff nor the defendant's counsel made mention in their closing addresses. It was part of the bundle of exhibits admitted into evidence by consent at the commencement of the trial and was described as trading notes and financial statement for the plaintiff and his wife trading as Spaulding & Son, dated 19 June 1987, prepared by their accountant, Benedict Leung. It stated, presumably as a result of information given to Mr Leung by the plaintiff and his wife, that early in the 1985/1986 fishing season, he decided to change his business from fishing to land-based work of quarrying and land development. It referred to him having the "opportunity to purchase the quarry … at a very attractive price of $9500". It stated that to the date of the report, sales from the quarry had been made "at a very low capacity" for three particular reasons, none of which concerned a low price for gravel paid by the defendant. It forecast that from the date of the report, the quarry operations would generate a cash surplus of $75,281.36 per month after payment of loans and expenses. I find of particular interest that it stated that the value of the quarry, purchased by the plaintiff for $9,500, was in fact $890,000 in accordance with a valuation report dated 20 May 1987 from Engineering Geology Specialists Pty Ltd, which accompanied Mr Leung's report but is not in evidence for the purposes of this action.
I also mention the evidence of Maurice Barwick, the current owner and operator of the quarry land. He has owned it since about 1993. It is plain that he has made a considerable profit out of the quarry. He also owns some of the Fouche land that was purchased by the plaintiff for $140,000. At the time of the trial, Mr Barwick was seeking $2,500,000 for the quarry and his part of the Fouche land.
The plaintiff gave extensive evidence concerning the reasons why he became a bankrupt on 8 May 1990. His evidence draws me to a conclusion that he became a bankrupt largely because of poor decisions made by him in connection with Pasminco EZ and a business called Australian Waste Processor, and also because he had incurred considerable loans from banks which his business operations could not service. I conclude from all of the evidence at the trial that the plaintiff made many poor business decisions and suffered losses as a result.
I deal next with the plaintiff's purchase of lot 7. The plaintiff was not legally bound to proceed with the purchase, notwithstanding the oral agreement that he would purchase it, until the defendant and Mr and Mrs Spaulding signed the agreement for sale that was drafted by the defendant. Thereafter, the defendant acted as the solicitor for the Spauldings for the purpose of completing the purchase.
I find that at the time they signed the agreement, the defendant owed fiduciary duties to the plaintiff in connection with it. He had been acting as their solicitor on previous occasions, and in particular, at about that time he was acting as the solicitor for them in the purchase of the quarry land, the gravel for which was intended for use in the development of the 500 acres, which included lot 7. He drafted the agreement. It was objectively reasonable for the plaintiff to rely on the defendant to provide him with advice as his solicitor in connection with the transaction.
It is a clear case of the defendant's interests conflicting with the interests of the plaintiff. I find that the defendant gave no advice to the plaintiff about a number of aspects of the proposed transaction concerning which the plaintiff, as the purchaser from the defendant, should have been wary. Firm legal advice should have been given to the plaintiff concerning the risks involved in proceeding with the transaction. Those risks would have been obvious to a competent solicitor.
Although I accept the defendant's evidence that the plaintiff was familiar generally with what was proposed to be lot 7, and that he was aware of the position of fences on some of the proposed boundaries, the defendant should have warned him that the boundaries were not yet settled, and that under the agreement with his co-developers, he had the power to determine those boundaries. Further, a firmly expressed warning should have been given by the defendant to the plaintiff, in his capacity as a solicitor, of the problems all of the developers would face concerning title. Potentially, title might not have been forthcoming for a long time and many things needed to be done first. One of them was the incurring of considerable expenditure by Mr and Mrs Spaulding in building a residence on lot 7, which was a requirement for a stratum title to issue. In the meantime, the land could not be used as security for a loan. Another matter about which the defendant might have been required to give advice to the plaintiff concerned his incorrect understanding that lot 7 would contain 50 acres. Appropriate legal advice would also have included that initially, the plaintiff and his wife would own all of the 500 acres as tenants in common with the other owners.
I do not ignore that Mr Jessup's report referred to the possibility of significant delays before title would issue and to the fact that in the meantime, a mortgage could not be registered against the property in the normal way. But that did not absolve the defendant from his responsibility to properly advise the plaintiff about those matters. In my view, a competent solicitor in the defendant's position would have advised the plaintiff that, at the very least, there were sound reasons for not entering into the agreement to purchase the defendant's interest in lot 7 at all.
I find that the defendant breached his fiduciary duty to the plaintiff. His interests conflicted with the plaintiff's interests.
However, that does not mean that the plaintiff's action succeeds. It does not, because he has failed to establish that he suffered loss as a result of the breach.
The evidence established that for $45,000 he purchased from the defendant property worth $47,500. He and his wife paid for it, out of the proceeds of sale of the Valda S, in December 1986. In July 1987 he contracted to sell it to Mr and Mrs Knight, making a gross profit of $2,500.
By par29 of the statement of claim, the plaintiff asserted that in order to finance the purchase of lot 7, he sold the Valda S and by doing so, lost his primary source of income. His evidence was that once he had sold the vessel, he had "lost the biggest part of my cash flow". He complained that the defendant should have advised him "don't sell your main source of income".
However, there was no evidence enabling me to find that the plaintiff suffered a loss by selling the vessel. There was no evidence that the sale price was less than value. It may have been far greater, for all I know. There was evidence that as a result of the sale, mortgage debts owed to two banks totalling $207,887.64 were cleared. There was no evidence of what the lessee of the vessel, Mr Wignall, was paying the plaintiff by way of rent, nor was there evidence of what interest was being paid on the mortgages.
The absence of evidence makes it impossible to find that the plaintiff suffered a financial loss as a result of the sale of the vessel. Even if there was a loss, the absence of evidence makes it impossible to assess the amount of it.
For the reasons given, the plaintiff's claim for equitable compensation arising out of his purchase of lot 7 must fail.
I deal next with the plaintiff's claim for compensation arising out of the sale of the Valda S in other respects. By pars37 and 38 of the statement of claim, the plaintiff pleaded that the defendant acted both for him and the purchasers, Mr and Mrs Warren. That was correct, and I accept that a fiduciary duty was owed by the defendant as a consequence, arising out of the potential for a conflict between the interests of his respective clients. However, the only finding I can make on the evidence is that the terms of the agreement for sale between the Spauldings and the Warrens were settled directly between them, and the defendant was not involved at that time. The plaintiff has failed to prove that the defendant breached his fiduciary duty to him, and has failed to establish that he suffered a loss. There is no evidence of any particular loss suffered by him as a result of the sale.
Finally I deal with the claim for compensation arising out of the sale of lot 7 to Mr and Mrs Knight. By par44 of the statement of claim, the plaintiff asserted that the defendant acted as agent for Mr and Mrs Knight, and by par48, that the defendant was in a position of conflict and by so acting, was in breach of a fiduciary duty. I find that the defendant did not act as a solicitor or agent of the Knights, and that no relevant conflict of interest arose. No breach of fiduciary duty has been established.
The plaintiff's delay in commencing the action
In view of my decision that the plaintiff's claim for compensation must fail for the reasons I have given, it is unnecessary to deal with this aspect, but I will do so briefly.
By par54 (second appearing) of the defence, the defendant pleaded that the plaintiff, by reason of his laches, acquiescence and delay, ought not to be granted any relief.
All of the events relied on by the plaintiff as a basis for his claim for equitable relief occurred between about early 1986 and early 1989, although the most material ones occurred no later than 1987. However, the action was not commenced until 19 December 2003, when the plaintiff filed the writ. So there was a delay of over 14 years at least, and arguably, 16 years, between the occurrence of the events and the commencement of the action.
If the plaintiff had sued the defendant for damages for breach of contract or for negligence in the performance of his duties as his solicitor, a limitation period of six years would have applied. Limitation Act, s4. It is plain that such an action, if commenced in 2003, would have been defeated as a result.
Counsel for the defendant conceded that the Act does not necessarily apply to a claim for equitable compensation for breach of fiduciary duty. That was held by Holt AsJ (as an obiter dictum) in Spaulding v Adams [2009] TASSC 23 at par[1], relying on Maguire v Makaronis (1997) 188 CLR 449 at 463.
However, there is ample authority for the proposition that equity may refuse relief if an analogy can be drawn between the relief sought and a legal claim barred by a limitation statute. See the Limitation Act, s9; Knox v Gye (1872) LR 5 HL 656 at 674 – 675; Cia de Seguris Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 at 121, 124 – 126; Duke Group Ltd (In Liq) v Alamain Investments Ltd [2003] SASC 415 at par[130]; Aussie Ideas Pty Ltd v Tunwind Pty Ltd [2006] NSWCA 286 at pars[22] – [24]; Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156 at pars[228] – [235]; Langford v Reddy [2012] NSWSC 289 at par[199]; Candibon Pty Ltd v Minister for Planning [2011] VSC 415 at pars[365] – [382].
In my opinion, the plaintiff's claim for compensation is essentially based on the same facts as would found a claim for damages against the defendant for breach of contract and negligence as a solicitor, and the same duties to advise are involved.
In my view, it is just, as between the parties, to apply the six-year time limit in the Limitation Act to this action. I am satisfied that by 1992 at the very latest, the plaintiff was aware of the essential facts upon which he relies as the foundation for the action, although he may not have known of every detail. He had raised them as the basis of a complaint he made to the Law Society in 1992 concerning the defendant.
For those reasons, I would apply the provisions of s4 by way of analogy to this action, and hold that the plaintiff's causes of action should be treated as barred when he commenced the action.
The plaintiff asserted that the defendant concealed his causes of action by fraud, and that it was not until March 1999 that he discovered the fraud. The evidence does not establish that the defendant acted fraudulently.
Conclusion
For the reasons I have given, there will be judgment for the defendant.
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