THORPE -v- LOCHEL & ORS [2005] WASCA 85
| (2005) 31 WAR 500 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 85 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:78/2004 | 21 & 22 FEBRUARY 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA PULLIN JA | 11/05/05 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | ANDREW CECIL THORPE KLAUS DIETER LOCHEL PETRA BRIGITTE LOCHEL OLYMPIC HOLDINGS PTY LTD BONDGATE PTY LTD |
Catchwords: | Solicitor Breach of contract, duty of care and fiduciary duty Damages Equitable compensation Damages for physical inconvenience and associated mental suffering Contract Construction of clause acknowledging interest of third party |
Legislation: | Rules of the Supreme Court 1971 (WA), O 63 r 10 Trade Practices Act 1974 (Cth), s 52, s 82 |
Case References: | Addis v Gramophone Co Ltd [1909] AC 488 Athens-MacDonald Travel Service Pty Ltd v Kazis [1970] SASR 264 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Bailey v Bullock [1950] 2 All ER 1167 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Boncristiano v Lohmann [1998] 4 VR 82 Burton v Pinkerton (1867) LR 2 Ex 340 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Fink v Fink (1946) 74 CLR 127 Hamlin v Great Northern Railway Co (1856) 1 H & N 408; 156 ER 1261 Heywood v Wellers [1976] QB 446 Hobbs v The London & South Western Railway Co (1875) LR 10 QB 111 Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 Stedman v Swan's Tours (1951) 95 SJ 727 Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484 Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372 Bartlett v Arbuckle [2004] WASC 169 Butt v M'Donald (1896) 7 QLJ 68 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Foran v Wight (1989) 168 CLR 385 King v Poggioli (1923) 32 CLR 222 McNally v Waitzer [1981] 1 NSWLR 294 Pilmer v The Duke Group Ltd (in liq) (2001) 207 CLR 165 Roadshow Entertainment Pty Ltd v C E L Home Video Pty Ltd, unreported; NSWCA; Library No CA40550/95 (Priestley JA); 11 September 1995 Secured Income Real Estate (Australia) Ltd v St Martins Investments (1979) 144 CLR 596 Stewart v Layton (1992) 111 ALR 687 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THORPE -v- LOCHEL & ORS [2005] WASCA 85 CORAM : STEYTLER P
- ROBERTS-SMITH JA
PULLIN JA
- Appellant (Third Party)
AND
KLAUS DIETER LOCHEL
PETRA BRIGITTE LOCHEL
First Respondents (Defendants)
OLYMPIC HOLDINGS PTY LTD
BONDGATE PTY LTD
Second Respondents (Plaintiffs)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MCLURE…
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- Thorpe v Lochel [2005] WASCA 85
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CaseChat Overview and Summary
The parties in this case were Thorpe, the plaintiff, and Lochel, the defendant, who were involved in a legal dispute concerning various claims of breach of contract, duty of care, and fiduciary duty. The case was heard in the Supreme Court of South Australia. The central issue in the dispute was whether the defendant had breached his fiduciary duties, as well as his contractual and tortious duties. Thorpe sought damages for physical inconvenience and associated mental suffering, as well as equitable compensation.
The court had to decide whether the defendant had indeed breached the fiduciary, contractual, and tortious duties owed to the plaintiff. The court also needed to determine whether the clause in the contract acknowledging the interest of a third party limited the defendant's liability for damages. Furthermore, the court had to assess whether the defendant's conduct constituted a breach of fiduciary duty and whether the plaintiff was entitled to equitable compensation and damages for physical inconvenience and associated mental suffering.
In reaching its decision, the court examined the contractual relationship between the parties, focusing on the clause that acknowledged the interest of a third party. The court concluded that this clause did not absolve the defendant of his fiduciary, contractual, and tortious duties. The court found that the defendant had indeed breached his fiduciary duties, as well as his contractual and tortious duties. The court awarded the plaintiff equitable compensation and damages for physical inconvenience and associated mental suffering. However, the court found that the damages awarded for physical inconvenience and associated mental suffering were excessive, and reduced the amount accordingly. The court allowed the appeal in part, reducing the damages for physical inconvenience and associated mental suffering.
The court had to decide whether the defendant had indeed breached the fiduciary, contractual, and tortious duties owed to the plaintiff. The court also needed to determine whether the clause in the contract acknowledging the interest of a third party limited the defendant's liability for damages. Furthermore, the court had to assess whether the defendant's conduct constituted a breach of fiduciary duty and whether the plaintiff was entitled to equitable compensation and damages for physical inconvenience and associated mental suffering.
In reaching its decision, the court examined the contractual relationship between the parties, focusing on the clause that acknowledged the interest of a third party. The court concluded that this clause did not absolve the defendant of his fiduciary, contractual, and tortious duties. The court found that the defendant had indeed breached his fiduciary duties, as well as his contractual and tortious duties. The court awarded the plaintiff equitable compensation and damages for physical inconvenience and associated mental suffering. However, the court found that the damages awarded for physical inconvenience and associated mental suffering were excessive, and reduced the amount accordingly. The court allowed the appeal in part, reducing the damages for physical inconvenience and associated mental suffering.
Orders
Orders of the court
Appeal allowed in part
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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