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Troja v Troja [No 2]

Troja v Troja [No 2]

Case [1994] NSWCA 321 11 May 1994

Abuse of Process

Civil Procedure

Equity & Trusts

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TROJA v TROJA [NO 2] [1994] NSWCA 321
Decision date: 11 May 1994

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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Troja v Troja [No 2] [1994] NSWCA 321
Case: [1994] NSWCA 321
Decision Date: 11 May 1994

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by the plaintiff, Troja, against the dismissal of his claim for damages for breach of contract and negligence. The defendant, Troja, was the plaintiff's former solicitor. The dispute arose from the defendant's conduct in relation to a settlement of a previous legal action brought by the plaintiff against a third party, where the defendant acted as the plaintiff's legal representative.

The primary legal issues before the Court of Appeal were whether the defendant had breached his duty of care to the plaintiff in his professional capacity, and whether there was a breach of contract arising from the retainer agreement. Specifically, the court had to determine if the defendant's actions in advising the plaintiff regarding the settlement offer, and the subsequent conduct in finalising that settlement, fell below the standard of care expected of a reasonably competent solicitor. The court also considered whether the plaintiff had suffered any loss or damage as a result of the alleged breaches.

The Court of Appeal, in its reasoning, applied established principles of negligence and contract law. It examined the evidence presented regarding the advice given by the defendant to the plaintiff concerning the settlement offer, and the plaintiff's instructions and understanding at the time of settlement. The court considered the nature of the solicitor-client relationship and the duties that arise from it, including the duty to exercise reasonable care and skill. The court found that the defendant had not breached his duty of care, nor had he breached the contract of retainer, as his conduct was consistent with the instructions received and the information available at the time. The court concluded that the plaintiff had not demonstrated that the defendant's actions caused him any loss.

The appeal was dismissed.

Orders

Orders of the court

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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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Citations

36

AGLC Citation

Troja v Troja [No 2] [1994] NSWCA 321

Most Recent Citation

Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245

Cases citing this decision · 36 of 36 shown

Estate of Jakov Pavic
[2024] ACTSC 414

…Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 Smith v Western Australia [2014] HCA 3; 250 CLR 473 Troja v Troja (1994) 33 NSWLR 269…
Re Estate of TCW (a pseudonym)
[2024] VSC 569 Para 1

…[4] Helton v Allen (1940) 63 CLR 691, 710. [5] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 147; Troja v Troja (1994) 33 NSWLR 269, 271. [6] In Re Houghton [1915] 2 Ch 173; In Re Pitts; Cox v Kilsby [1931] 1 Ch 546; In re Plaister, Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547; Public…
AA As Executor of the Estate of BB v Xx [No 2]
[2024] WASC 39 Para 9

…1] In the United Kingdom, the forfeiture rule has been the subject of recent analysis by the High Court in Challen v Challen .[32] [27] Troja v Troja (1994) 33 NSWLR 269. [28] Edwards v State Trustees Ltd [2016] VSCA 28; (2016) 54 VR 1. [29] Permanent Trustee v Gillett (2004) NSWSC 278; (2004) 145 A Crim R 220. [30] R…
Savage v Savage
[2023] QSC 280 Para 6

…Beresford v Royal Insurance Co Ltd [1937] 2 KB 197, 219; Helton v Allen (1940) 63 CLR 691, 709; Troja v Troja (1994) 33 NSWLR 269, 294-298, 299.…
Edwards v Edwards
[2023] NSWSC 1067

…Rasmanis v Jurewitsch [1970] 1 NSWR 650; (1970) 70 SR (NSW) 407 Settree Estates; Robinson v Settree (2018) 98 NSWLR 910; [2018] NSWSC 1413 Troja v Troja (1994) 33 NSWLR 269 Category: Principal judgment Parties: Joshua Lee Edwards (Plaintiff) John Wallace Edwards (Defendant; Self-Represented) Representation: Counsel: I…
Hannover Life Re of Australasia Ltd v Minister for Families and Communities
[2023] FCA 80 Para 20

…of life insurance proceeds. The application of the forfeiture rule in circumstances of murder was described by Meagher JA in Troja v Troja (1994) 33 NSWLR 269 thus (at 299): The basis of the doctrine is public policy, an abhorrence of the notion that one may profit from killing another…It is absolute and inflexible.…
Westpac Life Insurance Services Limited v Mahony (No 3)
[2020] FCA 285 Para 11

…nd inflexible”, resting on “an abhorrence of the notion that one may profit from killing another”: Troja v Troja and the Public Trustee (1994) 33 NSWLR 269 at 299 per Meagher JA.…
Swiss Re Life & Health Australia Ltd v Public Trustee of Queensland (No 3)
[2018] FCA 1918 Para 20

…In Troja v Troja and the Public Trustee (1994) 33 NSWLR 269 at 299, Meagher JA said that the rule rested in “an abhorrence of the notion that one may profit from killing another” and described the rule as “absolute and inflexible”. His Honour rejected an argument that the Court had a discretion, saying: All felonious…
Re Settree Estates; Robinson v Settree
[2018] NSWSC 1413 Para 25

…r common law rules governing forfeiture of property to the Crown , and loss of civil rights, following upon conviction of a felony: eg, Troja v Troja (1994) 33 NSWLR 269 at 277-278 per Kirby P.…
Re Rattle
[2018] VSC 249 Para 1

…ason P, with whom Beazley JA and Foster AJA agreed) as cited in Edwards v State Trustees Ltd [2016] VSCA 28 (10 March 2016). [15] Troja v Troja (1994) 33 NSWLR 269, 299.…
Estate of Raul Novosadek
[2016] NSWSC 554 Para 18

…In Troja v Troja (1994) 33 NSWLR 269, RP Meagher JA at 299 described the forfeiture rule as “fixed in an abhorrence of murder”. Similarly albeit with slight modification, Gzell J in Batey v Potts [2004] NSWSC 606 at [21] described the rule as “founded in public abhorrence of homicide”.…
Edwards v State Trustees Ltd
[2016] VSCA 28 Para 1

…ate if there is an acquittal on the basis of insanity: Re Plaister (1934) 34 SR (NSW) 547; Public Trustee v Fraser (1987) 9 NSWLR 433, 441; Troja v Troja (1994) 33 NSWLR 268, 283 (Kirby P); In the matter of the Estate of Soukup (1997) 97 A Crim R 103, 108; Re Vyner (dec’d) (Unreported, Supreme Court of Queensland, Shep…
Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz
[2015] NSWSC 1484 Para 5

…forfeiture rule (grounded in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 and affirmed by the NSW Court of Appeal in Troja v Troja (1994) 33 NSWLR 269), according to which a person who wrongfully kills another is disqualified by law from taking any benefit from the estate of that other, absent order…
Pike v Pike
[2015] QSC 134 Para 13

…Their Honours (at 710) referred to ‘the principle that by committing a crime no man could obtain a lawful benefit to himself’.”[7] [5] (1994) 33 NSWLR 269. [6] Ibid at 289. [7] Ibid at 294-295.…
Re Edwards; State Trustees Ltd v Edwards
[2014] VSC 392 Para 1

…n the application of the rule in manslaughter cases was strictly obiter dicta and therefore not technically binding. [5](1940) 63 CLR 691. [6](1994) 33 NSWLR 269.…
Secretary, Department of Family & Community Services v K
[2014] NSWSC 1065 Para 1

…The Court should also be wary against adoption of an extended form of the common law forfeiture rule ( Troja v Troja (1994) 33 NSWLR 269), notwithstanding the absence of a factual foundation for the invocation of that rule of public policy in a case such as the present, or the legislative reform (embodied in the Forfe…
Graham v Colonial Mutual Life Assurance Society Limited (No 2)
[2014] FCA 717 Para 9

…Comminsure argues that no court will assist a man who founds his cause of action on an immoral or illegal act, citing Troja v Troja (1994) 33 NSWLR 269. I accept Comminsure’s submission that the Court should not permit a criminal to profit from his crime as such, but the burning of the records and the business premise…
Vella v Michael John Bowden of Cannon Bowden and Co [No 3]
[2014] WASC 98

…v Jurewitsch [1970] 1 NSWR 650 Re Nicholson [2004] QSC 480 SAS Global Forrestdale Pty Ltd v Towton Investments Pty Ltd [2010] WASC 167 Troja v Troja (1994) 33 NSWLR 269 Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78 Vella v The State of Western Australia [2006] WASCA 129 Vella v The State of Western…
The Public Trustee of Queensland v The Public Trustee of Queensland
[2014] QSC 47 Para 6

…In Troja v Troja (1994) 33 NSWLR 269, the New South Wales Court of Appeal (by majority) affirmed that a person responsible for the death of another cannot be allowed to benefit from that other person’s estate. The beneficiary in that case had been convicted of manslaughter on the basis of diminished responsibility. Me…
Josifovski v Velevski
[2013] NSWSC 1103 Para 1

…ove the defendant's guilt to the civil standard and cannot rely on the defendant's conviction as conclusive evidence of guilt (see also Troja v Troja (1994) 33 NSWLR 269).…
Wollongong City Council v K and M Prodanovski Pty Limited
[2012] NSWLEC 107 Para 1

…quently " rights wrongs ", e.g. by approving the use of structures unlawfully constructed. He relied on the Court of Appeal decision in Troja v Troja (1994) 33 NSWLR 269, a rather extraordinary case concerning whether a woman who had murdered her husband was entitled to benefit from his estate, and submitted that the…
Nay v Iskov
[2012] NSWSC 598 Para 1

…the civil and not the criminal standard, although a certificate of conviction is admissible as evidence, but not conclusive evidence [ Troja v Troja (1994) 33 NSWLR 269]. However, the present case has proceeded on a consensual basis, with counsel for the plaintiff mentioning the matter for the solicitors for the defe…
Jacovic v Public Trustee
[2010] WASCA 100 Para 6

…In those circumstances, public policy precludes the appellant benefiting from his crime by a rule of forfeiture: see Troja v Troja (1994) 33 NSWLR 269. In the case of land held in joint tenancy by a murderer and the murderer's victim, the right of survivorship is recognised by law but equity intervenes, and the rule o…
In the Estate of LYNNE ANNE LUXTON
[2006] SASC 371 Para 15

…take that benefit. [6] Rasmanis v Jurewitsch & Anor [1970] 1 NSWR 650 [7] Rasmanis v Jurewitsch & Anor [1970] 1 NSWR 650 at 652. [8] Troja v Troja (1994) 33 NSWLR 269 [9] Troja v Troja (1994) 33 NSWLR 269 at 271. [10] Troja v Troja (1994) 33 NSWLR 269 at 299.…
State of Queensland v Byers
[2006] QSC 334 Para 1

…yers from continuing to have rights as a beneficiary under the will Ms Celon relies upon the forfeiture rule expressed, for example, in Troja v Troja (1994) 33 NSWLR 269, 299. It establishes that where a person who would otherwise obtain a benefit by the death of another has brought about that other’s death by violent…
Public Trustee of New South Wales v Fitter and (3) Ors
[2005] NSWSC 1188

…er; Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547 The King v Porter (1933) 55 CLR 182 Troja v Troja (1994) 33 NSWLR 269 PARTIES: Public Trustee of New South Wales - Plaintiff George Sidney Fitter - First Defendant Grant Fitter - Second Defendant Kylie Fitter - Third Defendant Ann Robb - Fourth Defendant…
Batey v Potts
[2004] NSWSC 606

…) 82 WN (Pt 1) (NSW) 298 M'Naghten Rules (1843) 10 Cl & F 200 (8 ER 718) Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 Troja v Troja (1994) 33 NSWLR 269 Public Trustee v Evans (1985) 2 NSWLR 188 Public Trustee v Fraser (1987) 9 NSWLR 433 Re Keitley [1992] 1 VR 583 Permanent Trustee Co Ltd v Freedom Fr…
Permanent Trustee Company Ltd v Gillett
[2004] NSWSC 278

…) 547 Re Tucker (1920) 21 SR(NSW) 175 R v Gillett [1999] NSWSC 115 Regina v M'Naghten (1843) 8 ER 718 Regina v Porter (1936) 55 CLR 182 Troja v Troja (1994) 33 NSWLR 269 PARTIES : Permanent Trustee Company Ltd (P/XD) Christian Gillett by His Tutor the Protective Commissioner (D1/XC) Ingrid Gillett (D2) Ailsa Gillett (…
Re Clive Anthony Nicholson
[2004] QSC 480 Para 1

…set out in A Dillon, “ When Beneficiary Slays Benefactor: The Forfeiture ‘Rule’ Should Operate as a Principle of General Law ”; Troja v Troja (1994) 33 NSWLR 269; Re Keitley [1992] 1 VR 583.…
Gonzales v Claridades
[2003] NSWCA 227

…ipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 A v C (No 2) [1981] 1 QB 961 Helton v Allen (1940) 63 CLR 691 Troja v Troja (1994) 33 NSWLR 269 Rivers v Rivers (2002) 84 SASR 426 PARTIES : SEF GONZALES v AMELITA CLARIDADES FILE NUMBER(S): CA 40565/2003 COUNSEL: Appellant: B Rayment QC/ P Kint…
Gonzales v Claridades
[2003] NSWSC 508

…973] 1 WLR 998 Shelley v NSW Institution for the Deaf, Dumb and the Blind [1919] AC 650 In Re Stone; Read v Dubua (1936) 36 SR(NSW) 508 Troja v Troja (1994) 33 NSWLR 269 Wilcox v Poole [1974] 2 NSWLR 693 Wyndham v Mackenzie (1918) 25 CLR 172 Wright v Wright (1948) 77 CLR 191 In the Will of Charles A York (1894) 15 NSW…
Neubacher v Good
[2003] NSWSC 379

…Little; Ex parte Thorne's Bankstown Estate Ltd (1929) 29 SR (NSW) 401 Re Mitchell (1902) 19 WN (NSW) 161 Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 Troja v Troja (1993) 33 NSWLR 269 PARTIES : Diana Neubacher in her capacity as representive of the estate of John Dawson Taylor (deceased) - Plaintiff Kim Lenore Good in…
Rivers v Rivers
[2002] SASC 437 Para 8

…roviding for forfeiture in the event of conviction for treason or felony ( Dugan v Mirror Newspapers Limited (1979) 142 CLR 583 at 602; Troja v Troja (1994) 33 NSWLR 269). The judge-made law which followed the passing of the Forfeiture Act was based on the precept that a person could not take advantage of his or her o…
Wingecarribee Shire Council v Pancho Properties Pty Limited
[2001] NSWCA 271 Para 3

…e rights directing resulting to a person asserting them from the crime of that person (see Helton v Allen (1940) 63 CLR 691 at 709; Troja v Troja (1994) 33 NSWLR 269 at 194-5) the approval can not be given. (Although it may be semantics, if the argument were accepted I doubt the description of the applications as inco…
Pancho Properties Pty Ltd v Wingecarribee Shire Council
[1999] NSWLEC 245

…ing to a person asserting them from the crime of that person” ( Troja v Troja (1994) 33 NSWLR 269 at 294 explaining Helton v Allen (1940) 63 CLR 691 at 709). The council claims the Court is being asked to sanction the illegality of using the existing dwelling which the applicant is bound to demolish. 38. Mr Tobias QC,…
Re: Vyner v Vyner
[1999] QSC 198 Para 6

…I turn now to the law. The principle, operation of which the plaintiff has to negative, was stated by Mahoney JA (as he then was) in Troja v Troja (1994) 33 NSWLR 269 at p 294 as follows: "The principle ... is ... that the law will not enforce “rights directly resulting to a person asserting them from the crime of tha…

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