Trajkovski v Simpson

[2018] NSWSC 720

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Trajkovski v Simpson [2018] NSWSC 720
Hearing dates:	12-16 March 2018
Date of orders:	21 May 2018
Decision date:	21 May 2018
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	1. The second further amended statement of claim is dismissed. 2. The plaintiff is to pay the defendants’ costs of the proceedings.
Catchwords:	TORTS – negligence – professional negligence – legal practitioners – plaintiff entitled to payment from husband under Family Court consent orders – where defendants represented husband in matrimonial property dispute and in relation to encumbrance and sale of matrimonial property –wife separately represented in matrimonial proceedings initially – wife terminated retainer of her solicitor and became unrepresented – proceeds from sale of land not used to satisfy payment to plaintiff pursuant to consent orders – whether husband’s solicitors owed duty of care to wife – whether defendants acted under conflict of duties – whether unconscionable conduct of defendants under the general law or within meaning of Trade Practices Act 1974 (Cth), s 51AB – ostensible authority and agency – whether husband was ostensible agent of wife in giving instructions to husband’s solicitors – claim dismissed
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Revised Professional Conduct and Practice Rules 1995 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14 Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 Hurley v McDonald's Australia Ltd [1999] FCA 1728 Feldman v GNM Australia Ltd [2017] NSWCA 107 Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18 Perera v Genworth Financial Mortgage Insurance (2017) 94 NSWLR 83; [2017] NSWCA 19
Category:	Principal judgment
Parties:	Suzana Trajkovski (plaintiff) Ian Garnet Simpson (first defendant) Simpson & Partners Solicitors Pty Ltd (second defendant)
Representation:	Counsel: Ms Jill McIntosh (plaintiff) Mr James Emmett/Mr Harrison Grace (defendants)   Solicitors: Yeldham Price O’Brien Lusk Peter Cornock & Associates
File Number(s):	2014/203803

Judgment

1. The plaintiff claims damages for alleged negligence of the first defendant, a solicitor, and the second defendant, his incorporated legal practice. The plaintiff and her husband separated in March 2006. In May 2007 she obtained orders by consent in the Family Court of Australia under which the husband was to pay her $850,000. In 2007 and 2008 the defendants acted under instructions of the husband on the mortgage and sale of various properties owned by the couple and their companies and the husband’s parents. The plaintiff’s claim arises out of the of the defendants’ actions under the retainer from the husband in which she says the defendants failed to exercise reasonable care to secure to her from the proceeds of sale the balance of monies due to her under the Family Court consent orders.

Retainer of the defendants pre-separation

2. The plaintiff was married to Borce Trajkovski in March 1992. During their marriage he carried on business through corporate vehicles as a painting contractor and property developer. The plaintiff had married Mr Trajkovski immediately upon attaining legal age. Although she became a shareholder and director of companies operated by her husband and was often during their marriage required to sign documents in connection with business and corporate affairs, she did not acquire any significant business acumen or a confident understanding of property or financial transactions. In about 2004 she purchased a beauty salon business with the assistance of her husband. She conducted that business through a company, Skinergy Pty Ltd, until 2006.

3. The first defendant has practised as a solicitor in New South Wales since 1996. At relevant times he was the sole director and secretary of the second defendant. The defendants provided legal advice and services to both the plaintiff and Mr Trajkovski from about 2004. They acted for the Trajkovskis in connection with the purchase of the beauty salon business and in connection with Mr Trajkovski’s and his companies’ business transactions, including the purchase, mortgaging and sale of land. In connection with transactions upon which the defendants acted up until March 2006, the plaintiff was from time to time asked either by her husband or the first defendant or one of the latter’s staff to attend the defendant’s office to sign documents. The plaintiff complied with these requests and signed documents placed in front of her without attempting to understand their content or significance.

Separation and settlement of matrimonial property proceedings

4. From January 2006 the plaintiff rented a townhouse in Dural to which she could move upon separation from her husband. On 17 February 2006 she consulted Mr David Chesters, a solicitor who practised exclusively in family law under the name Norwest Family Law from an office at Baulkham Hills. At this first consultation Mr Chesters took instructions regarding the family’s “asset pool”. The plaintiff informed Mr Chesters that up to this time she had been too afraid to leave her husband. She gave evidence in these proceedings that Mr Trajkovski had been physically abusive during their marriage, that he had at times made threats of self-harm and that she was afraid of him from before their separation.

5. Just over four weeks after first consulting Mr Chesters, on 18 March 2006, the plaintiff moved out of a home at Dural, of which the plaintiff, Mr Trajkovski and his parents were registered proprietors and in which they had all resided up to that time. She and Mr Trajkovski have two sons who were of school age at that time and who moved with the plaintiff into the townhouse. On 20 and 21 March 2006 she again consulted Mr Chesters concerning issues of custody and access as well as matrimonial property. On 22 March 2006 the plaintiff telephoned Ms Evelyn Newman, the first defendant’s paralegal assistant, and informed Ms Newman that she had engaged Mr Chesters in relation to her matrimonial affairs.

6. The plaintiff’s telephone contact with Ms Newman prompted the first defendant to write to Mr Chesters on 23 March 2006 in the following terms:

We … confirm our disclosure to you to the effect that we have acted for Mrs Trajkovski in the purchase of her business, conveyances and on family related mortgage matters. As we understand it, Mrs Trajkovski does not object to us acting for her Husband.

We do not have knowledge of any matter that we believe is or would be at a later date prejudicial to Mrs Trajkovski as a consequence of us acting for her in the past.

7. The first defendant’s letter continued with a detailed statement of Mr Trajkovski’s instructions with respect to a range of matrimonial issues including child access and property. Mr Chesters’ letter in reply dated 24 March 2006 included the following:

Our client does not object to your representation of Mr Trajkovski in this matter. We reserve the right to review this position if information arises in the future that suggests prejudice to our client by reason of your representation on her behalf in the past.

8. On 3 May 2006 the first defendant informed Mr Chesters by telephone that he still did not have “the full cooperation of [Mr Trajkovski] in providing financial disclosure”. Mr Chesters intimated that if he did not receive disclosure within about two weeks he would have to commence court proceedings and issue subpoenas. The next day Mr Chesters advised the plaintiff to go to the relevant banks and obtain statements of account and to approach the accountant who handled the affairs of the Trajkovskis, a Mr Katralis, with a request for copies of financial returns of entities of which the plaintiff was a director.

9. On 29 November 2006 Mr Chesters filed on behalf of the plaintiff an application in the Family Court of Australia for property distribution orders. At a consultation with the plaintiff on 14 February 2007 Mr Chesters had information and instructions from which he estimated that the Trajkovskis’ net asset pool for the purposes of property distribution was $2.7 million. He provided to Ms Trajkovski an estimate of her entitlement, according to family law, at $1.4 million “based on H’s figures”. He estimated that half of her entitlement would be $694,000.

10. A mediation of the property settlement dispute took place before a registrar of the Family Court on 15 February 2007. This did not achieve a resolution. On 27 March 2007 the plaintiff informed Mr Chesters (by telephone, according to a file note) that she had “had a slight change of heart and wants her full entitlements rather than accepting something less to resolve the matter at an early stage”. On the same day the plaintiff wrote to Mr Chesters a letter which commenced as follows:

I would like to go over a few matters before next Thursday regarding property settlement. I am sure you have had much experience with clients getting very nervous at this point, that is why I am emailing because I am better at writing than speaking.

11. The letter continued with instructions concerning the history of the couple’s accumulation of assets, the value of personal property which Mr Trajkovski had retained, her contribution to the running of her husband’s businesses, the prospect of appreciation in value of the assets Mr Trajkovski would be retaining and other matters.

12. On 18 April 2007 the defendant informed Mr Chesters by letter that he had been instructed the parties had agreed to settle on the basis that Mr Trajkovski would pay the plaintiff $100,000 within four weeks and a further $750,000 when a property at Baker Street, Banksmeadow had sold. On 1 May 2007 Mr Chesters consulted with the plaintiff and I infer he must have received her instructions to settle for payment of $850,000. He requested the plaintiff to sign, and she did sign, an acknowledgement addressed to him in these terms:

1   The asset pool has not been [properly] identified and in particular the valuation of the Baker Street [Banksmeadow] development is unknown.

2   You cannot determine at this stage my entitlements relating to a division of property.

3   Your best estimate of my entitlements is $1.1 Million net property.

4   The agreement I have reached with [Mr Trajkovski] appears to represent a distribution of just over $500,000 once all debts in my name are paid.

5   You cannot recommend this property settlement.

13. On 2 May 2007 consent orders were signed in the Family Court property proceedings. These were made by the court on 10 May and included the following:

1   That on or before 14 May 2007 the Husband shall pay to the Wife the sum of $50,000 … .

2   That within four months [by 2 September 2007] the Husband shall pay to the Wife the further sum of $800,000 [and discharge loans of which the plaintiff was a borrower or guarantor, other than a loan from St George Bank to Skinergy Pty Ltd].

2   Simultaneously with satisfactory compliance with Order 2 the wife will do all acts and things and sign all documents necessary to [transfer to the husband her interest in the Dural property, her interest in other properties of which she was a joint registered proprietor, her shares in the husband’s corporate vehicles and her interest in two investment trusts; and to resign as a director of the corporate vehicles and discharge the loan from St George Bank to Skinergy Pty Ltd].

4   The Wife shall be declared the sole owner to the exclusion of the Husband of her right title and interest in Skinergy Pty Ltd.

5   The Husband shall pay as and when they fall due all payments relating to loans in the joint names of the parties except the St George loan to Skinergy Pty Ltd … .

14. The sum of $50,000 was paid under order 1, several months after the due date.

April 2006 and August 2007 dealings with matrimonial property

15. As at March 2006, when the defendants were informed that Mr Chesters had been retained by the plaintiff in relation to her matrimonial affairs, the Trajkovskis had interests in the following properties and entities:

• The Dural home, in which the plaintiff, Mr Trajkovski and his parents had equal interests.

• A residence at 6 Chegwyn Street, Botany, held by the same registered proprietors as the Dural home.

• A development site at 19 Baker Crescent, Banksmeadow, owned by MBS Holdings Pty Ltd of which the plaintiff and Mr Trajkovski were shareholders and directors.

• Commercial property at 29 Violet Street, Revesby, owned by OKO Pty Ltd of which the plaintiff and Mr Trajkovski were shareholders and directors.

16. MBS Holdings Pty Ltd undertook a development of the Banksmeadow property between 2005 and 2008. It built factory units on the land and sold them individually. To finance this project the company initially borrowed funds from Guardian Mortgages Pty Ltd, secured over the Banksmeadow and Revesby properties. In about April 2006 MBS Holdings Pty Ltd obtained from St George Bank a loan facility of $4.39 million secured by mortgages of the same properties. Of this facility $2.4 million was drawn down and applied to discharge the balance of the debt due to Guardian Mortgages Pty Ltd and that lender’s mortgages were removed from the titles.

17. The plaintiff executed the documents which were necessary to complete the refinancing transaction with St George Bank in April 2006. The evidence does not enable me to find whether she did so at the defendants’ office or whether the documents were brought to her by Mr Trajkovski for signing.

18. In August 2007 Mr Trajkovski negotiated with St George Bank for MBS Holdings Pty Ltd’s facility to be increased by $724,000 to $5.114 million. Completion of this transaction required that the plaintiff should sign a guarantee of the company’s liabilities and statutory declarations (in her capacity as a director of the company and of OKO Pty Ltd). All of the necessary documents were sent by the Bank’s solicitor to the defendants’ office. The plaintiff attended there to execute them in the presence of the first defendant and Ms Newman.

Sale of the Dural home under contract of July 2008

19. By 8 October 2007 the defendants had received instructions from Mr Trajkovski to act for himself, his parents and the plaintiff on the sale of the Dural home. On instructions from Mr Trajkovski a draft contract of sale was prepared in the defendants’ office and sent under cover of a letter of 8 October 2007 to the Century 21 real estate agency at Dural. Mr Trajkovski had instructed the defendants that Century 21 had been engaged to list the property for sale. The plaintiff was aware the property was listed for sale and informed Mr Chesters. The plaintiff did not ask Mr Chesters to consider or to approve the draft contract.

20. Mr Chesters wrote to the defendants on 1 February 2008 referring to the fact that the Dural home was listed for sale, pointing out that interest on the $800,000 payable under the unsatisfied Family Court order had now accrued to $35,000 and pressing for Mr Trajkovski to realise other assets in order to pay out the plaintiff. Mr Chesters noted that the Dural property was listed at a price 30% greater than the value at which Mr Trajkovski had brought it to account when negotiating the matrimonial settlement. Mr Chesters’ letter did not convey any attempt on the part of the plaintiff to instruct the defendants to take any course with respect to the sale of the Dural property different from what was being done under the instructions of Mr Trajkovski.

21. By 12 June 2008 the plaintiff understood that the Dural home had been sold and she so informed Mr Chesters. She instructed him that she would attend the defendants’ office in the near future to sign the contract of sale. Mr Chesters advised that she might consider placing a caveat on the title in the near future “so that she can participate in the settlement and protect her position”. The plaintiff did not give instructions for a caveat to be lodged nor for Mr Chesters, on her behalf, to take any action in relation to completion of the sale or the distribution of the proceeds. She did not ask Mr Chesters to communicate with the defendants regarding the transaction, for example to require that they keep him informed about the proposed distribution of proceeds or that they seek, through Mr Chesters, the plaintiff’s approval of the settlement distribution. Nor did the plaintiff contact the defendants directly to give instructions for distribution of the proceeds or to request that her approval be sought before any money should be paid out.

22. The contract for sale of the Dural property was signed on 3 July 2008. The signatures of all four vendors were attested by a single witness, L Petrovski. I am satisfied that the contract was not signed by any of the vendors in the defendants’ office or in the presence of the first defendant or any of his staff. No person named L Petrovski worked in the defendants’ office. If the contract had been signed there by the plaintiff her signature would have been witnessed by the first defendant or by Ms Newman or some other member of the defendants’ staff. On 31 July 2008 Ms Newman informed the plaintiff by email that contracts for the sale of the Dural property had been exchanged and that it was due for completion on 14 August 2008.

Further encumbrance of properties to ING Bank In June 2008

23. In early June 2008 Mr Trajkovski negotiated a loan facility of $4 million with ING Bank (Australia) Ltd (“ING”). This required execution by the plaintiff of mortgages (of the residences at Dural and at Chegwyn Street Botany), a deed of guarantee, an acknowledgement that advice had been received independent of the lender and other documents. The plaintiff signed all necessary documents in the defendants’ office on about 5 June 2008 and her signatures were witnessed by Ms Newman.

24. On 10 July 2008 approximately $3.2 million was drawn down from ING under this facility. $3.13 million of this was applied in discharge debts owed to St George Bank. Mortgages in favour of St George Bank, over some of the properties owned by the Trajkovskis and their companies, were discharged and the executed securities in favour of ING were handed over for registration. Approximately $800,000 of the facility remained undrawn.

Circumstances of plaintiff signing documents in defendants’ office

25. The plaintiff deposed that on a number of occasions after the Family Court consent orders had been signed her husband requested her to attend the defendants’ office to sign documents. She gave no specific evidence about the signing the documents for the August 2007 refinancing transaction (see [18]) or those for the June 2008 ING facility. In her principal affidavit she deposed in general terms that after 10 May 2007 her husband contacted her “on a number of occasions” and told her it was “vital” she go to the defendant’s office and sign documents “if you want your money”.

26. Without differentiating between individual attendances the plaintiff deposed that on each occasion the first defendant:

said words to me to the effect “There’s no need for David Chesters to know about this. Come on Suz, the sooner you sign these the sooner you will get your money and it will all be done. You got legal and financial advice right Suz” and then he would wink at me. He also said words to the effect: “let’s just get this done, you know how it works”.

27. The plaintiff said that on these attendances the first defendant never suggested she get independent legal advice, did not himself provide her with advice about the documents, did not provide copies, “always had a sense of urgency that the documents be signed immediately and once I signed the documents I would be ushered to leave”. The plaintiff deposed that the first defendant “would flick through the documents very generally” and never asked whether she had any questions on them.

27. The plaintiff deposed that she signed the contract for sale of the Dural property at the defendants’ office. Although not directly stated, the implication of her evidence is that the manner in which the signing took place and the things said and omitted from being said by the first defendant were of much the same description as what she described of all other instances of signing transactional documents in the presence of the first defendant, subsequent to the matrimonial separation. However I am satisfied that the plaintiff did not sign the contract at the defendants’ office and that her implied assertion about how this would have taken place is incorrect.

28. The first defendant’s evidence is that on each of the occasions of signing documents for the August 2007 St George transaction (referred to at [18]) and for the June 2008 ING transaction (see [23]) the plaintiff did not attend at his request but, so far as the first defendant could tell, through arrangement made with her by Mr Trajkovski. The first defendant said that he commenced each such attendance by reminding the plaintiff that he was acting for her husband in the matter of their matrimonial property and that she should see her own solicitor before signing. Each time she responded: “I don’t want to do that. I just want to sign”.

29. I accept the first defendant’s evidence in this respect. It is consistent with his awareness that Mr Chesters was acting for the plaintiff and with his care in earlier correspondence to respect the ethical obligations to which the situation gave rise. By 2007 and 2008 the first defendant had considerable experience in transactional work such as this. A warning to the plaintiff to take the advice of her own retained solicitor would have been a reflex for him. On my assessment of the first defendant’s experience, integrity and forthrightness, based upon the content of his evidence and his manner of giving it, I find it improbable in the extreme that he would have suggested to the plaintiff “There’s no need for David Chesters to know about this”. It is unlikely that he would have believed Mr Chesters did not know about the transactions.

30. Further, it is highly likely the plaintiff would have dispensed with obtaining her own advice and said “I just want to sign”. On her own evidence she was intimidated by her husband, who was forceful and insistent about her signing documents as and when he required her to. It is unlikely she would have wanted to receive advice upon or understand the transactions. Her failure to have the documents referred to Mr Chesters or to any other solicitor retained by her is a strong indication of this. Whatever might be the detail of the documents, her inclination was to do as her husband directed.

31. I also accept the first defendant’s evidence that he outlined the nature and effect of each document on each occasion. He said that that was a routine procedure in his practice and I have no difficulty accepting that it would have been. The first defendant’s explanations of his practices in evidence and his ready and sound understanding of solicitors’ duties, exhibited in cross-examination, gave me the impression that he is (and was in 2007 and 2008) a knowledgeable and careful practitioner. His brief explanations to the plaintiff may have appeared to her as “flicking through” the documents. If so, I conclude that that would have resulted from her not having a ready understanding of such transactions and not seeking to absorb information about them because, at the insistence of her husband, she would sign them anyway.

32. I am not satisfied on the balance of probabilities that the first defendant said anything or gestured in any way to hint that the plaintiff might pretend she had had independent advice about the transactions where in fact she had not. Again, the recollection of the plaintiff is out of keeping with my impression of the first defendant’s standards as a solicitor. The plaintiff’s evidence in this regard is inherently lacking in weight because she does not purport to recall individual conversations at the time of signing particular documents. Rather, she claims that a uniform routine of conversation took place on a number of occasions, one of which is said to have been the signing at the first defendant’s office of the contract for sale of the Dural property, an occasion about which she is in fact entirely mistaken in my view.

33. The plaintiff’s account of things said to her by the first defendant at the time of signing transactional documents is contradicted by the evidence of Ms Newman. It is clear from the signatures on the documents of August 2007 and June 2008 that Ms Newman was present. I found her to be a credible and reliable witness. She had no recollection of the first defendant having spoken in the terms attributed to him by the plaintiff.

Settlement of the sale of the Dural property

35. Under the contract dated 3 July 2008 for the sale of the Dural property a deposit of $302,500 was paid by the purchaser to the vendor’s agent. On 7 July 2008 at the request of Mr Trajkovski the first defendant wrote to the agent seeking release of $123,000. Mr Trajkovski wished to apply this to the purchase of a property at Sans Souci for which he and his parents had recently entered into a contract. The purchaser of the Dural property agreed and the funds were duly released.

36. Mr Chesters gave evidence, which I accept, that “in the period leading up to” 8 August 2008 the plaintiff communicated with him in terms and in a manner which conveyed that she was in fear of her husband to such a degree that “she had lost the ability to consider her self-interest or even consider basic methods of protecting her financial interests”. In early August he was aware that Mr Trajkovski intended to sell one or more of the matrimonial properties, that the $800,000 due to the plaintiff under the orders of 10 May 2007 had still not been paid and that the plaintiff was “not in control of any of these intended sales”. In those circumstances he again advised her, on a date which I infer must have been 7 August 2008 or very shortly before, that she should instruct him to place a caveat on the titles of properties which were intended to be sold, to ensure that the proceeds would be applied in payment of what was due to her.

37. On 7 August 2008 Mr Chesters had a phone conversation with the first defendant. I draw conclusions as to the content of this conversation in part from Mr Chesters’ oral evidence and in part by inference from the terms of the letter he wrote to the first defendant the next day. He informed the first defendant that he was aware the husband was intending not to pay the plaintiff the full balance due to her out of the sale proceeds from the Dural property, which at that stage was scheduled to complete the following week. Mr Chesters must have told the first defendant he was advising the plaintiff a caveat should be lodged, to protect her entitlement to be paid. From what occurred later that evening, as described by the plaintiff, I infer that the first defendant relayed the terms of this conversation to his client, probably by email sent the same day.

38. The plaintiff deposed that on the night of 7 August 2008 her husband attended the townhouse where she and their two sons resided, unannounced, in an agitated state. He said words to the effect:

Sign all documents to let the sale of the matrimonial home go through. If you don’t tell your solicitors to drop the caveat I will kill the kids and kill myself, you will have destroyed everything I have ever worked for.

39. The plaintiff’s reaction to this was as follows:

During and after Bobby’s [that is, Mr Trajkovski’s] attendance at my home I felt terrified for the children and [for] my own safety. I asked Bobby to leave which he did. I felt distraught, I was crying. I didn’t know what to do. I felt extremely scared of Bobby. I knew from previous experience in our relationship that Bobby could be very violent. I had seen Bobby’s violent tendencies in the past during our relationship. I was of the view Bobby was sincere when he said he would “kill the children and himself”. I was terrified Bobby would carry out his threat.

40. The plaintiff had a telephone conversation with Ms Newman the next morning which Ms Newman recorded in a file note as follows:

She had words with Bobby last night regarding our letter to Bobby of 7.8.08.

Suzi said she never gave David Chesters instructions to put or consider putting a caveat on the [Dural property]. Suzi said she did not expect this from someone who is supposed to be helping her. She said David Chesters is just pressuring her for payment of his fees.

Suzi said she will try and borrow some money from her parents and just pay Chesters.

I asked if Suzi had seen our letter to Bobby - she said no. Suzi confirmed that Bobby told her that he would give her $100,000 on the sale of [the Dural property] and when the factories sell she can have the rest.

41. The plaintiff went to Mr Chesters’ office that morning, after the conversation with Ms Newman. Mr Chesters described her as extremely distressed, crying and shaking. She was unwilling to enter his conference room and he had to take instructions from her in the reception area of his office. She was in such an upset state that he was unable to obtain clear instructions. However she did communicate to him what had occurred the previous evening and that his instructions to act for her were terminated. Mr Chesters telephoned the first defendant and reported what he had observed of the plaintiff, what she had told him and that he was no longer acting for her.

42. Mr Chesters wrote to the first defendant on 8 August 2008, as follows:

We refer to our conversation yesterday.

Instead of agreeing to put the representations he made to our client to induce her to receive only a partial distribution of property at settlement next week your client threatened our client last night in the presence of the children with suicide and traumatised her.

Our client has withdrawn instructions and has been left with the impression that she will receive nothing and can do nothing about that because of the actions and threats of your client.

Our former clients last instructions to us was (sic) to notify you that she did not wish to file a caveat to protect her position or ensure that she has a say in distribution of the settlement proceeds.

You will now have to take instructions from our former client directly. In those circumstances we identified a professional responsibility to notify you of the duress our client has been put under even though she does not want it disclosed. If this matter was still being litigated we would have to consider the appointment of a next friend. That is the severity of our client’s distress following the confrontation your client initiated last night.

We note your office has taken no part in that duress and has at all times interacted with us in a manner that meets the professional standards required.

43. I infer that the plaintiff was so intimidated by her husband’s reaction to the news that she had been advised to place a caveat which would force him to pay her out from the proceeds of the Dural property, that she felt the need to appease and reassure him by terminating the instructions of her solicitor. In order to calm her husband and dissuade him from the violence he threatened, she decided not to insist upon payment from the proceeds. Certainly she resolved not to place any obstacle in the way of disbursement of the proceeds in whatever way her husband saw fit.

44. Mr Chesters denied that his advice to the plaintiff had been given with the objective of securing payment of his own fees (as asserted by the plaintiff to Ms Newman). He denied that he pressured the plaintiff. I accept his evidence in these respects. The advice he gave her, as recorded contemporaneously in writing, was to impede the sale of assets in order to secure payment to her in accordance with the Family Court consent orders. It was sound advice. There is no basis for regarding that advice as the product of Mr Chesters’ self-interest. I infer that the plaintiff imputed base motives to him when speaking with Ms Newman as part of her appeasement of her husband and reassurance to him that she was no longer aligned with Mr Chesters or with his advice that she lodge a caveat.

45. The plaintiff deposed that she signed the transfer of the Dural property on about 8 August 2008. The document bears the signatures of all four transferors and a single witness, Goran Petrovski of 5 Birdwood Street, Kangaroo Point. The plaintiff has deposed that she signed the transfer in the defendants’ office but I do not accept that is so. If the plaintiff had signed at the defendants’ office her signature would have been witnessed by the first defendant or Ms Newman or another staff member.

46. On 13 August 2008 Mr Trajkovski requested the first defendant to seek from the real estate agent release of another $133,725 from the deposit, again to be applied towards the purchase by Mr Trajkovski and his parents of the property at Sans Souci. These funds were duly released.

47. On 15 August 2008 Ms Newman notified the plaintiff by email that the date for settlement of the Dural sale had been put back to 15 August 2008. On 21 August 2008 there was an email notification of a further deferral to 25 August 2008. On approximately the latter date, settlement was again put back to 3 September 2008. There is no evidence of notification to the plaintiff of this further deferral.

48. The plaintiff has deposed that she was told by the first defendant, “You’ll get your money when the sale goes through.” The first defendant denies that he said this and I find that he did not. From the events of 7 and 8 August 2008 the plaintiff, Ms Newman and the first defendant were fully aware that Mr Trajkovski had no intention of allowing the plaintiff to be paid the money owed to her out of the settlement. His hysteria and threats of violence on the night of 7 August 2008 were a reaction to the very suggestion that the plaintiff should be paid in full from that source.

49. When the sale settled on 3 September 2008 the proceeds were applied in accordance with Mr Trajkovski’s instructions to the first defendant. There is no evidence that the plaintiff was consulted about these instructions before they were implemented or that after 8 August 2008 she ever attempted or purported to give instructions for any part of the money to be distributed to her. The bulk of the proceeds were applied in reduction of business debts of Mr Trajkovski and his companies secured over the Dural property ($1.164 million to ING), towards completion of the purchase of the property at Sans Souci ($1.107 million) and in payment of $457,000 to one of the companies through which Mr Trajkovski was then carrying on property development activities.

50. It is the plaintiff’s case that the sum of all amounts paid from the proceeds of the Dural property towards Mr Trajkovski’s purchase of the Sans Souci property and to his operating company, a total of $1.744 million, should be regarded as “excess funds” which ought to have been applied in part towards the $800,000 due to her under the orders of 10 May 2007.

Alleged conflict and negligence concerning the 2007 facility increase

51. The defendants accepted the instructions of Mr Trajkovski to act on completion of the transaction in 2007 by which St George Bank increased its lending facility to Mr Trajkovski and his companies by $714,000. The plaintiff was a necessary party and signatory to the transaction as guarantor, as joint registered proprietor of some of the security properties and as an officer of the corporate entities. The defendants were not retained by her to advise or otherwise to act for her on the transaction. Although the plaintiff at this time retained Mr Chesters in relation to her matrimonial affairs, she did not instruct him to represent or advise her concerning the 2007 transaction with St George Bank. The plaintiff chose to be unrepresented in relation to that matter.

52. The plaintiff was well aware that the defendants were acting for Mr Trajkovski and the companies of which he and the plaintiff were directors in relation to increasing the St George Bank facility and in his matrimonial dispute with herself. The plaintiff has submitted that “a conflict between acting for the husband and the plaintiff arose”. I do not accept that that is so. The defendants never purported to act for or to advise the plaintiff with respect to the matrimonial dispute or the transaction with St George Bank. Their only contact with her in connection with the latter was to attend her signing of the documents upon Mr Trajkovski arranging for her to come to their office for that purpose.

53. The plaintiff submits that she did not receive any payment from the increased St George Bank facility towards satisfaction of the orders of 10 May 2007. There is no evidence that she purported to give the defendants instructions regarding application of the additional borrowings when drawn down. Nor did she seek Mr Chesters’ advice about trying to secure for herself part satisfaction of the Family Court orders from the St George Bank drawdown. She did not ask him to issue any demand or request to the defendants (or to Mr Trajkovski through the defendants) in that regard.

54. Under par 64 of the second further amended statement of claim there are alleged 27 particulars of negligence of the defendants. These are also said to be particulars of unconscionable conduct, which is pleaded as a separate cause of action. Of this list, items “a” to “k” are all concerned with alleged negligence in connection with the 2007 increase in the St George Bank facility (and the 2008 refinance with ING).

55. All of these particulars proceed on the assumption that the defendants were, at the time of the St George Bank facility increase, under a duty of care to advise the plaintiff with respect to the impact of the transactions upon her matrimonial property position. But they were not under such a duty. They were not retained by the plaintiff to advise her on the matrimonial dispute. They were not retained by her even for the discrete purpose of documenting the St George Bank transaction. She knew that the defendants were retained by her husband to advise him on the matrimonial property dispute.

56. A solicitor does not owe a duty of care to advise or to protect the interests of his client’s opponent in a contentious matter: Perera v Genworth Financial Mortgage Insurance (2017) 94 NSWLR 83 at 96-97; [2017] NSWCA 19 at [52]-[53]. A duty of care owed by the defendants to the plaintiff to advise her or act in her interests with respect to the St George Bank transaction, for example to warn her that it might compromise Mr Trajkovski’s capacity to pay the $800,000, would be inconsistent with their duty to Mr Trajkovski. As stated by Gaudron J in Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 at 196-197:

[A] contract between solicitor and client obliging the solicitor to act in the client’s interests and contrary to those of the third party excludes any relationship of proximity between the solicitor and the third party. Similarly, in my view, there can be no duty of care owed to a third party if the duty asserted is inconsistent with the duty owed to the client or of the solicitor is obliged to act exclusively in his or her client’s interests.

57. Although the plaintiff’s case on the 2007 St George Bank transaction fails on the absence of retainer of the defendants by the plaintiff, I will consider the particulars of alleged negligence. The first particular under par 64 is in these terms:

a. Having or allowing or permitting the plaintiff sign [sic] mortgage and related loan and guarantee documents in implied contravention of (and/or a mortgage and related loan and guarantee which was brought into being to defeat) court orders entered into on 10 May 2007.

58. The documents signed by the plaintiff in August 2007 in favour of St George Bank were not “in implied contravention of” the Family Court consent orders of 10 May 2007. Those orders required that Mr Trajkovski pay the plaintiff $800,000 by 2 September 2007 and simultaneously transfer to him all her interest in the properties and in their companies. Further encumbrance of the properties in the meantime did not involve any contravention.

59. There is no evidence to support the allegation that the transaction documents of August 2007 “were brought into being to defeat” the orders. So far as Mr Trajkovski’s purposes are referred to, the documents show on their face a purpose of borrowing to fund business activities. There is no evidence to show that this was not the husband’s bone fide purpose. It was not put to the first defendant in cross-examination that he had a purpose of defeating the court orders and I do not understand that to have been contended.

60. Particular “b” alleges that the defendants contacted the plaintiff when she was legally represented by another solicitor. This is repeated in particular “bb” under par 65 of the second further amended statement of claim, where the defendants’ contact with the plaintiff is said to have been an infringement of r 31 of the Revised Professional Conduct and Practice Rules 1995. There was no infringement of that rule in circumstances where the contact consisted of the plaintiff coming to the defendants’ offices to sign documents, pursuant to arrangements made between their own client and the plaintiff, and where Mr Chesters did not act for the plaintiff on the subject matter of the attendance. The defendants did not at any time contact the plaintiff in relation to the matrimonial dispute upon which Mr Chesters represented her. If, contrary to my view, there was a breach of the rule it does not equate to a breach of duty. As earlier stated, there was no duty of care owed by the defendants to the plaintiff in the absence of a retainer.

61. Particular “c” was abandoned. Particular “d” alleges that the defendants were negligent in “having allowing or permitting” the plaintiff to sign the documents of the St George Bank transaction “when she was not legally represented”. This is inherently contradictory and unsustainable. If the plaintiff was unrepresented then the defendants were not retained by her and did not owe her a duty. Also, a solicitor does not come under a duty of care to a third party who is dealing with his or her client just because the third party does not have independent legal representation. This particular is also contradictory of all of the others which positively assert, contrary to the fact, that the plaintiff had retained the defendants. It is most starkly contradictory of the very next particular, “e”, which asserts a breach of duty by the defendants “acting for the plaintiff when there was a conflict of interest with the defendants acting for the husband and/or [the family companies]”. Particular “e” itself fails because the defendants were not in fact “acting for the plaintiff” on any matter at any material time.

62. Particulars “f” to “k” are all based upon the same assumption as particular “a”, namely, that the defendants were under a duty to advise the plaintiff regarding how the 2007 transaction with St George Bank would impact upon her interests. It is asserted by these particulars that the defendants were negligent in “having or allowing or permitting” the plaintiff to sign the relevant documents when she was “in an impaired mental state”, without referring her “for separate legal representation” or “independent financial advice”. Given the absence of any retainer of the defendants by the plaintiff and their duty to Mr Trajkovski, who had retained them, these particulars are unsustainable.

63. In particulars “cc” to “dd” and “gg” and “hh” under par 65 the plaintiff has invoked r 45 of the Revised Professional Conduct and Practice Rules 1995, apparently in support of the claim in negligence or for breach of fiduciary duty relating to the 2007 St George Bank transaction. This rule is concerned with the duties of a solicitor who is “engaged to give advice to a proposed signatory that will be” a borrower, a security provider, a third party mortgagor, a guarantor etc. The plaintiff cannot sustain any aspect of her case against the defendants upon the basis of this rule. Solicitors’ conduct rules do not found independent causes of action. They may provide an indication of generally accepted standards of practice, which will be relevant in determining whether a solicitor’s actions fell short of reasonable care. Rule 45 has no application because the defendants were not engaged by the plaintiff to give her any advice or take any action on her behalf concerning the St George Bank transaction.

64. It has not been proved that, as a result of the particularised failings of the defendants, the 2007 St George Bank transaction caused the plaintiff to suffer loss. It is not pleaded and certainly not proved that through negligence of the defendants in the respects alleged, transfers or encumbrances of property took place or funds were applied in a manner contrary to the plaintiff’s instructions. Particulars “a” to “k” under par 64 and “bb” to “dd” and “gg” and “hh” under par 65 stand in isolation and are not connected with other facts which the plaintiff would have to plead and prove in order to establish a cause of action.

65. In summary, the plaintiff has not established in relation to the St George Bank transaction a cause of action for breach of common law duty or contractual retainer, nor any basis for claiming equitable compensation for breach of fiduciary duty. The allegations made on her behalf in relation to this matter are considerably confused, in large part misconceived and otherwise not sustained by the evidence.

Conflict and negligence concerning the 2008 refinance

66. The same factual analysis applies to the 2008 refinancing transaction with ING. The defendants were retained by Mr Trajkovski in the completion and execution of documents to establish this new facility. The plaintiff did not retain them to advise her or act for her in the matter. She still retained Mr Chesters at that time but only with respect to the matrimonial dispute. She did not seek advice from Mr Chesters about the ING transaction, nor did she ask him to convey instructions to the defendants about it. Again, the plaintiff chose to be unrepresented in the matter and she attended the defendants’ offices only for the purpose of signing documents when requested by her husband to do so. She acquiesced in Mr Trajkovski instructing the defendants with respect to the matter. She did not at any material time purport to convey instructions to the defendants about application of the loan funds when drawn down.

67. In relation to the 2008 ING transaction the plaintiff relies upon the same particulars “a” to “l” under par 64 of the second further amended statement of claim and “bb” to “dd” and “gg” and “hh” under par 65. All of those particulars fail for the same reasons as given above in relation to the 2007 St George Bank transaction. Again there is no evidence of financial loss caused to the plaintiff as a result of the particularised actions and omissions of the defendants in connection with this transaction.

Negligence in completion of the sale of the Dural property

68. The primary cause of action propounded by the plaintiff is negligent breach of duty by the defendants in the discharge an alleged retainer from her (and from her husband and her parents-in-law) to act on completion of the sale of the Dural property. I find that the defendants were retained in relation to this sale not by all four vendors but by Mr Trajkovski alone. The plaintiff was a necessary signatory to the contract and the transfer but she did not engage the defendants as her solicitors in the matter. It is open to one of several registered proprietors of a property to engage solicitors with respect to its disposition while the other proprietors are either separately represented or unrepresented. In this case, the plaintiff chose to be unrepresented. At the commencement of the sale process she had Mr Chesters as her solicitor in relation to the matrimonial dispute but she did not ask him to act on the conveyancing transaction.

69. That is the end of the plaintiff’s claim in negligence relating to the Dural property. However I will also consider the position on the assumption, contrary to my view, that the defendants were retained by the plaintiff to act on the sale. The plaintiff contends that it was within the scope of the defendants’ common law duty to exercise reasonable care to cause $800,000 of the net proceeds of the sale to be paid to her in satisfaction of the orders of 10 May 2007. It is alleged that duty was breached by the defendants causing or permitting the whole of the proceeds to be applied in other ways. The plaintiff has received, from other sources and on other occasions, part of the $800,000. There is a shortfall which she has never recovered and which has not been satisfactorily quantified in the evidence. She claims this shortfall as damages occasioned by the defendants’ alleged negligence in completion of the sale.

70. The first defendant received instructions from Mr Trajkovski regarding distribution of the proceeds and he acted on those instructions. The first defendant treated Mr Trajkovski as the agent of all four vendors with respect to instructions regarding distribution. I find that the plaintiff acted in such a way as to hold Mr Trajkovski out to the defendants as her agent, with authority to instruct them regarding the distribution of proceeds. The acts and omissions by which the plaintiff clothed her husband with this ostensible or apparent authority were as summarised in the following paragraphs.

71. First, the plaintiff signed the contract of sale. I have found that she did not sign it in the defendants’ office. Clearly a counterpart of the contract was exchanged with the purchaser and there is no evidence that the plaintiff herself had any part in this. I infer she must have left the signed document in the hands of her husband. The plaintiff knew that the defendants acted generally for Mr Trajkovski in all his transactions and that he would retain and instruct them to act for him and the other vendors on completion of the sale. Her execution of the contract and leaving it with her husband in these circumstances equipped him to proceed to instruct the solicitors regarding completion. The plaintiff did nothing about retaining independent solicitors of her own and there is no evidence she ever communicated with the defendants to suggest that she would.

72. Secondly, the plaintiff signed the transfer. Again I find that she did not do this in the defendants’ office. I infer that she left the document in her husband’s hands and that he brought it to the defendants’ office to enable them to complete the sale. An appointment for settlement could not be made by the defendants until they had an executed transfer. By signing the transfer and leaving it with Mr Trajkovski the plaintiff enabled her husband to present himself to the defendants as fully in control of the transaction and as being authorised with respect to it by all vendors. The plaintiff did not contact the defendants to instruct them, for example, that although she had signed the contract and the transfer and left them in her husband’s hands she would give her own independent instructions as to how the proceeds were to be dealt with.

73. Thirdly, knowing that Mr Trajkovski had retained the defendants to act on the sale and that Mr Trajkovski was armed with the document signed by the plaintiff, she did not contact the defendants to advise that Mr Trajkovski lacked her authority regarding any aspect of completion, in particular regarding disbursement of proceeds.

74. Fourthly, after the defendants had notified the plaintiff by email on 31 July 2008 that the sale would be completed on 14 August 2008, she made no contact with the solicitors’ office to convey any particular instructions regarding application of the proceeds of sale or otherwise to qualify what would have been perceived as the full authority of her husband to instruct the firm concerning the sale.

75. Fifthly, on or very shortly before 7 August 2008 Mr Chesters advised the plaintiff to lodge a caveat against the title of any property which was being sold, such advice being for the purpose of securing payment of what was due to her under the orders of 10 May 2007. He then raised with the first defendant his concern about protecting the plaintiff’s interest in the proceeds of sale (as recorded at [36]-[37] above). Instead of confirming to the first defendant that Mr Chesters had her authority to raise these issues and to require that the defendants disburse part of the proceeds of sale in discharge of Mr Trajkovski’s outstanding obligation under the orders of the Family Court, the plaintiff, in response to intimidation by her husband, terminated Mr Chesters’ instructions and spoke to Ms Newman in the terms summarised at [40]. Thus, Mr Chesters’ attempt to protect the plaintiff’s interests was countermanded and she gave no instructions to the defendants about securing payment to herself. Instead she made it clear she was content to rely upon her husband’s offer to pay her $100,000 out of the net proceeds.

76. Sixthly, on each of 15 and 21 August 2008 the defendants notified the plaintiff of successive dates to which settlement of the sale had been postponed. The plaintiff did not respond on either occasion. Notably, she did not instruct the defendants as to what was to be done with any part of the proceeds of sale. She said nothing to reverse the position as it had been left on 8 August 2008.

77. Legal principles concerning ostensible authority were restated, sufficiently for present purposes, in Feldman v GNM Australia Ltd [2017] NSWCA 107 by Beazley P (with whom McColl JA agreed in this respect) at [99]-[100]:

[99] Whether or not a person has ostensible authority (also described at times as “apparent authority”) is a question of fact: see Geissler v Accro Motors Pty Ltd (1955) 73 WN (NSW) 31; CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 9 ANZ Insurance Cases ¶61-232 at 75,554. It usually involves an inference based upon a representation or representations made by the principal that the agent has authority to contract within the ambit or scope of the “apparent authority”: Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503.

[100] The jurisprudential basis of ostensible authority is traditionally described in terms of estoppel by representation. Reliance is a necessary element of the estoppel: Freeman & Lockyer v Buckhurst Park Properties at 503; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72; Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 200; G E Dal Pont, Law of Agency (3rd ed, 2014, LexisNexis) 460 [20-7]. In a case such as the present, the party seeking to enforce the contract must prove a change of position to its detriment.

78. Applying those principles I find that the plaintiff made representations to the defendants, by signing the contract and transfer, by omission of any qualifying instruction to the defendants and by express relinquishment of the control of the proceeds (conveyed to Ms Newman on 8 August 2008). The defendants acted upon these representations and treated Mr Trajkovski’s instructions concerning disbursement as coming from the plaintiff’s authorised agent. The defendants thus changed their position to their detriment. They acted on the understanding, which the plaintiff is estopped from disputing, that they had the plaintiff’s authority through her agent to disburse the funds. Even if they had been under a retainer from the plaintiff with respect to completion of the sale they would not have acted negligently by implementing the directions of her ostensibly authorised agent.

79. The scope of a solicitor’s common law duty of care is largely defined by the terms of his or her retainer; that is, by what he or she is instructed to do. Particulars “l” to “aa” under par 64 of the second further amended statement of claim assert respects in which it is alleged the defendants breached a common law duty of care (and acted unconscionably) in respect of completion of the Dural sale. For example it is alleged the defendants applied settlement funds from the sale of the Dural property to the purchase by Mr Trajkovski and his parents of the property at Sans Souci (particular “o”). It is said that the defendants failed to obtain the plaintiff’s instructions for disbursement (particular “q”) and that they paid out some of the proceeds to St George Bank when it was not a registered mortgagee of the Dural property (particular “r”). I find that in all of the actions complained of in these particulars the defendants proceeded upon instructions given by Mr Trajkovski as the plaintiff’s ostensible agent. Accordingly, none of those actions constituted a breach of duty, even if it were the case that the defendants were retained to act for the plaintiff on the sale.

80. Further particulars of alleged breach of duty in connection with the sale of the Dural property are given in items “ee” and “ff” under par 65. These allege contravention of r 45 of the Revised Professional Conduct and Practice Rules 1995. As earlier stated this rule has to do with the conduct of a solicitor retained to advise upon a financial transaction and it is therefore not engaged with respect to the sale of the Dural residential property. The reasons for my earlier-stated conclusion (at [63]) that r 45 cannot avail the plaintiff in relation to the 2007 and 2008 lending transactions make it equally inapplicable to her claim in respect of the Dural sale.

81. The plaintiff submits that the defendants breached the duty of care which they are said to have owed to her under their alleged retainer to act on the sale of the Dural property “by continuing to act for the plaintiff whilst she was represented by David Chesters and doing so whilst in a position of conflict (as the defendant(s) represented the former husband)”. I reject this aspect of the plaintiff’s case because I find that she did not retain the defendants to advise or act for her on the sale.

82. The plaintiff did not plead any case which squarely alleged, as a fact to be found by the Court, that her will was overborne by Mr Trajkovski’s conduct on the evening of 7 August 2008 so that her actions in terminating Mr Chesters’ retainer, in giving him the final instructions which she did and in communicating with Ms Newman on the morning of 8 August 2008, were all the product of duress. In any event I find that the defendants were not aware of circumstances from which they in fact concluded or ought to have concluded that the plaintiff acted at that time under such duress.

83. Mr Chesters’ letter of 8 August 2008 expressed his concern about his client having been “traumatised” and placed under “duress”. However the plaintiff’s direct contact with Ms Newman consisted of denigrating Mr Chesters, asserting that it was he who had pressed her to seek payment out of the proceeds of the Dural property only to advance his own interest in payment of his fees, and stating that she had made an arrangement with Mr Trajkovski under which she would not seek to impede the sale by a caveat and would receive $100,000 thereafter. I have no hesitation in accepting the plaintiff’s evidence that she was shaken by her husband’s conduct on the evening of 7 August 2008. However I am satisfied she put on a brave front of composure to Ms Newman. By that conduct and by her criticism to Ms Newman of Mr Chesters she rebutted the latter’s expressions of concern about her having been subjected to duress.

Unconscionable conduct

84. The plaintiff’s pleading and submissions of unconscionable conduct on the part of the defendants are unclear, incomplete and misconceived. She has alleged unconscionability as if it were a free-standing ground of relief, without relating this characterisation of the defendants’ conduct to any particular transaction. However in the plaintiff’s final submissions the subject of unconscionability was confined to the circumstances surrounding completion of the Dural sale.

85. The plaintiff cited Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14 as authority for the jurisdiction of the court to relieve against unconscionable dealing. For present purposes it is sufficient to quote the following statement of the general principle from the judgment of Deane J at 474:

The jurisdiction of courts of equity to relieve against unconscionable dealing developed from the jurisdiction which the Court of Chancery assumed, at a very early period, to set aside transactions in which expectant heirs had dealt with their expectations without being adequately protected against the pressure put upon them by their poverty (see O'Rorke v. Bolingbroke (1877) 2 App Cas 814, at p 822). The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or "unconscientious" that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable

86. The second further amended statement of claim does not allege that the plaintiff was under a special disability in any transaction between herself and the defendants or that the defendants, as the stronger parties to such a transaction, ought to have known of an inequality between the plaintiff and themselves such that it was unconscientious for them to have accepted the plaintiff’s assent to such a transaction. Even if, contrary to my finding, the defendants were retained as the plaintiff’s solicitors on the completion of the Dural sale, this retainer did not constitute or give rise to a transaction between them and the plaintiff to which this doctrine could apply.

87. The sale itself was between the plaintiff (and her co-vendors) and the purchaser. The transaction of distribution of proceeds was between Mr Trajkovski and the plaintiff. To bring the facts within the concepts involved in Commercial Bank of Australia v Amadio the plaintiff would have to allege and prove that Mr Trajkovski acted unconscientiously to take advantage of a “special disability” in the plaintiff of which he knew. She would then have to contend that the defendants, who were not parties to the transaction at all but were intermediaries, were liable on the basis of knowing concern in Mr Trajkovski’s unconscientious procurement of the plaintiff’s acquiescence in his distribution of the proceeds of the sale to his own benefit.

88. None of this was alleged by or on behalf of the plaintiff. The second further amended statement of claim purports to provide particulars of unconscionable conduct of the defendants by referring to the 27 particulars of alleged breach of duty of care set out under par 64. These do not address the concepts of special disability and knowledge thereof which are fundamental to application of the equitable doctrine. If these shortcomings of the pleading should be disregarded and if it should be found that the plaintiff was under a special disability of which Mr Trajkovski knew and took advantage, on the findings I have made regarding the defendants’ perception of the plaintiff’s state of mind it could not be said that the defendants were complicit in this.

89. The plaintiff has also invoked s 51AB of the Trade Practices Act 1974 (Cth) (now s 21 of Schedule 2 to the Competition and Consumer Act 2010 (Cth)) as a statutory basis for claiming relief in respect of unconscionable conduct, at least against the second defendant (being a corporation). As at 2008 the section was in the following terms, extracted so far as relevant:

51AB Unconscionable conduct

(1) A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable.

(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of goods or services to a person (in this subsection referred to as the consumer), the court may have regard to:

(a)   the relative strengths of the bargaining positions of the corporation and the consumer;

(b)   whether, as a result of conduct engaged in by the corporation, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the corporation;

(c)   whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d)   whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the corporation or a person acting on behalf of the corporation in relation to the supply or possible supply of the goods or services; and

(e)   the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the corporation.

(3) ...

(4) For the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of goods or services to a person:

(a)   the court shall not have regard to any circumstances that were not reasonably forseeable at the time of the alleged contravention; and

(b)   the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.

(6) ...

(7) ...

90. In Hurley v McDonald's Australia Ltd [1999] FCA 1728 the Full Court (Heerey, Drummond and Emmett JJ) held at [22]:

For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated – Cameron v Qantas Airways Ltd [1995] FCA 1304; (1994) 55 FCR 147 at 179. Whatever "unconscionable" means in sections 51AB and 51AC, the term carries the meaning given by the Shorter Oxford English Dictionary, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable – Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term "unconscionable" import a pejorative moral judgment – Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 283-4 and 298.

91. In Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18 at [192] Besanko and Gilmour JJ held as follows with respect to s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (which prohibits unconscionable conduct in terms similar to s 51AB):

We have not overlooked the fact that unconscionable conduct under s 12CB of the ASIC Act is not restricted by the constraints that may exist under the unwritten law. It is something more than conduct which may be considered unfair and all the relevant circumstances must be considered. That includes the matters listed in the statute. Some of those matters may not be relevant in a particular case and not all of the matters may point to the same conclusions. Features such as dishonestly, trickery, predatory or overbearing behaviour, choice or the absence of choice, disadvantage, vulnerability and exploitation all remain relevant matters. The Court is required to evaluate the conduct by reference to the relevant principles. The judgment does not involve a discretionary judgment to which the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 are applied on appeal.

92. Section 51AB has no application because there was no “supply or possible supply of … services” by the defendants to the plaintiff to which the statutory prohibition of unconscionable conduct could attach. But if, contrary to my conclusion, the plaintiff retained the defendants to act for or advise her upon completion of the sale of the Dural property, there was still nothing unconscionable about the conduct according to the exposition of that concept in the above-cited authorities. That is because the defendants had no basis for believing the plaintiff was acting under duress of her husband when she told Ms Newman on the morning of 8 October 2008 that she had terminated the services of Mr Chesters, that she did not intend to impede completion of the sale and that she was content with her husband’s offer to pay her $100,000 out of the proceeds.

Sundry allegations against the defendants

93. The plaintiff’s second further amended statement of claim contains numerous isolated allegations of irregularity in the conduct of the defendants, none of which are supplemented by the pleading of sufficient additional facts to give rise to a cause or causes of action. For example, in par 29B it is pleaded that the defendants “did not make or attempt to make any contact with the plaintiff’s solicitor David Chesters in regard to the loan and mortgage documents the plaintiff signed at the defendant’s (sic) office” in connection with the August 2007 increase in the St George Bank facility. But it is not alleged that this constituted a breach of a duty of care or of a fiduciary duty owed by the defendants to the plaintiff in relation to that transaction.

94. Similarly, it is alleged in par 33B that the first defendant “contacted the plaintiff directly whilst she was legally represented by David Chesters” in connection with the signing of the contract of sale of the Dural property and that he “did not make or attempt to make any contact” with Mr Chesters in relation to that contract. Once more, these allegations are not connected with any assertion of a breach by the defendants of their duties or any claim of consequential loss. These unconnected allegations were not developed in final submissions. No attempt was made to construct causes of action upon most of them. I have therefore disregarded such allegations in these reasons.

Disposal of other matrimonial assets

95. The plaintiff gave evidence of the sale by Mr Trajkovski and his companies of other properties which had formed part of the matrimonial pool of assets, including several industrial units which he had developed at 19 Baker Street, Banksmeadow. No complete cause of action is pleaded against the defendants in relation to any of these sales but allegations were made at trial concerning the sale of Unit 4 at Banksmeadow.

96. On 27 October 2008 the plaintiff engaged a solicitor, Mr Peter Cornock, to act for her to recover the money which was still unpaid under order 2 of the Family Court orders made on 10 May 2007. On 24 May 2010 the plaintiff and her husband consented to further orders in the Family Court by which it was agreed that Mr Trajkovski would cause the sale of Unit 4 to be completed by 16 August 2010 and would pay the plaintiff not less than $300,000 from the proceeds. These further orders also provided that Mr Trajkovski would refinance other properties, also by 16 August 2010, and make further payments to the plaintiff to bring the total paid to her up to $750,000 plus interest at 9.25% from the date of the orders.

97. These orders were also not complied with by the due date. Therefore, on 16 August 2010 further consent orders (subsequently referred to as “mechanism orders”) were made. Pursuant to these Mr Cornock and the first defendant were appointed trustees for the sale of Unit 4 and the property at 29 Violet Street, Revesby. On 15 April 2011, before Unit 4 had been sold by the trustees, Bardom Pty Ltd lodged a caveat to protect its interest under an unregistered mortgage which Mr Trajkovski had caused to be granted by MBS Holdings Pty Ltd (the Trajkovski family company which was registered proprietor of the unit).

98. There was some evidence tendered (principally a letter from the first defendant to Mr Katralis, Mr Trajkovski’s accountant) which indicated that Mr Katralis was in some way interested in or associated with Bardom Pty Ltd and that he had caused it to loan approximately $265,000 to MBS Holdings Pty Ltd in about 2005 when the latter company purchased the development site on which Unit 4 was subsequently constructed. There was also evidence that either when this loan was made or at a later date, but before April 2011, the first defendant had provided to Mr Katralis a pro forma loan agreement and mortgage for the purpose of enabling him to document and secure the loan by Bardom Pty Ltd to MBS Holdings Pty Ltd. The evidence tended to suggest that Mr Katralis had completed these documents and obtained from MBS Holdings Pty Ltd the unregistered mortgage which he subsequently sought to protect by lodging a caveat in April 2011. The evidence on these subjects was scant, imprecise and unsatisfactory.

99. On 20 November 2012 Bardom Pty Ltd was granted leave to intervene in the Family Court proceedings between Mr and Mrs Trajkovski, for the purpose of establishing its right to be paid the debt secured by its unregistered mortgage over Unit 4 in priority to payment of the sum due to the plaintiff under the consent orders of 16 August 2010. Bardom Pty Ltd’s claim was evidently accepted by both the plaintiff and Mr Trajkovski. The earlier orders under which Mr Cornock and the first defendant were to sell Unit 4 as trustees were discharged by consent on 20 November 2012. I infer that Bardom Pty Ltd’s entitlement to be paid out of the proceeds of sale of the unit would leave nothing over towards satisfaction of the plaintiff’s entitlements against her husband.

100. There is no pleading of any negligence or other actionable wrong on the part of the defendants in relation to the entitlement of Bardom Pty Ltd against Unit 4. Plaintiff’s counsel expressly disclaimed any separate cause of action based upon this aspect of the evidence and relied upon it only as part of the plaintiff’s proof that, in the event, she never recovered all of what was due to her under the Family Court orders. The plaintiff’s evidence has not proved on the balance of probabilities that all reasonable prospects of recovery against Mr Trajkovski have been exhausted. She has therefore not proved her alleged loss. It is not necessary for me to consider in detail the evidence on that subject because of the conclusions I have reached that the defendants are in any event not liable for any loss.

Orders

101. None of the plaintiff’s causes of action pleaded against the defendants have been sustained. As Mr Trajkovski was not a party and was not called as a witness I have not heard his account of why he failed to honour the consent settlement of the division of matrimonial assets, as agreed and reflected in the orders of 10 May 2007. On the evidence presented in these proceedings it was a very modest settlement from the plaintiff’s point of view and, accepting her description of what subsequently occurred in the absence of any contradictory version, it appears she was treated very poorly. However, according to law, this was not the fault or responsibility of the defendants. They did not undertake a professional responsibility to her. They therefore did not come under a common duty to exercise care with respect to her interests nor a fiduciary duty to act in her interests. I find that in their dealings with the plaintiff they did not act in any respect unconscientiously.

102. Accordingly, the orders of the Court are:

1. The second further amended statement of claim is dismissed.

2. The plaintiff is to pay the defendants’ costs of the proceedings.

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Decision last updated: 21 May 2018