Willett v Thomas

Case [2012] NSWCA 97


Court of Appeal

New South Wales

Case Title: Willett v Thomas
Medium Neutral Citation: [2012] NSWCA 97
Hearing Date(s): 10, 11, 12 October 2011 (Written Submissions completed 25 November 2011)
Decision Date: 19 April 2012
Jurisdiction:
Before: Basten JA at [1] 
Macfarlan JA at [74] 
Young JA at [217]
Decision:

(1) In respect of the appeal by Gregory Paul Willett:
(a) Allow the appeal in so far as it concerns the order for payment of compound interest and set aside orders 1 and 2 made on 5 or 8 November 2010.
(b) Otherwise dismiss the appeal.
(c) Order the appellant to pay the costs of the first, second and third respondents in respect of the appeal.
(d) Direct that the parties file amended amounts in respect of orders 1 and 2 made on 6 October 2010, calculating interest on the constituent parts of those amounts from the dates on which the amounts were paid until 6 October 2010, in accordance with the rates prescribed by the rules from time to time.
(e) Direct the Registrar to amend the amounts referred to in orders 1 and 2 made on 6 October 2010, so as to include the amounts of interest payable in respect of each order.
(f) In the event of the relevant amounts not being agreed within 28 days of the date of this judgment, direct that the matter be relisted before a judge of the Court for further directions.

(2) Dismiss the application for leave to cross-appeal of Softsand Design Investments Pty Ltd with no order as to costs.

(3) Dismiss Mr Thomas' cross-appeal with costs.

(4) In respect of the appeal of Deborah Willett:
(a) Allow the appeal and set aside order (5) made on 6 October 2010.
(b) In lieu thereof, order:
5. The plaintiffs to pay the costs of the fifth defendant.
(c) Order that the first, second and third respondents pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

EQUITY - fiduciary duty - accountant - whether fiduciary obligations owed - breach - whether loss suffered

TRADE AND COMMERCE - misleading and deceptive conduct - ss 51A, 52 Trade Practices Act 1974 - ss 41, 42 Fair Trading Act 1987 - representations as to future matters - whether reasonable grounds for making representations - whether loss suffered in reliance

COSTS - Sanderson order - principles and application

Legislation Cited: Civil Procedure Act 2005
Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Bullock v London General Omnibus Co [1907] 1 KB 264
City of Botany Bay Council v Jazabas Pty Ltd…

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Details
AGLC
Willett v Thomas [2012] NSWCA 97
Case
[2012] NSWCA 97
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal and cross-appeal arising from proceedings in the primary court. The appellant, Gregory Paul Willett, appealed against certain orders made by the primary judge, as did Deborah Willett. Softsand Design Investments Pty Ltd and Mr Thomas also sought to cross-appeal. The dispute involved allegations of breaches of fiduciary duty by an accountant and contraventions of consumer protection legislation, specifically the Trade Practices Act 1974 and the Fair Trading Act 1987, relating to representations made about future matters.

The Court of Appeal was required to determine whether the primary judge erred in finding that the appellant owed fiduciary obligations to the respondents and whether those obligations were breached. Further, the court had to consider whether the representations made by the appellant regarding future matters were made without reasonable grounds, thereby contravening the relevant provisions of the Trade Practices Act and Fair Trading Act. The court also had to assess the primary judge's findings regarding loss suffered by the respondents in reliance on these representations and the appropriate calculation of interest.

The Court of Appeal allowed Gregory Paul Willett's appeal in part, specifically concerning the order for compound interest, and set aside those orders. The appeal was otherwise dismissed. The court directed that the parties file amended amounts for the original orders, calculating interest on the constituent parts from their payment dates until the date of the original orders, in accordance with prescribed rates. The Registrar was directed to amend the amounts to include this calculated interest. In the event of disagreement on the amounts within 28 days, the matter was to be relisted for further directions. The application for leave to cross-appeal by Softsand Design Investments Pty Ltd was dismissed with no order as to costs, and Mr Thomas' cross-appeal was also dismissed with costs. Deborah Willett's appeal was allowed, and the order concerning her costs was set aside and replaced with an order that the plaintiffs pay her costs. The first, second, and third respondents were ordered to pay Deborah Willett's costs of the appeal.

Orders

Orders of the court

(1) In respect of the appeal by Gregory Paul Willett:

(a) Allow the appeal in so far as it concerns the order for payment of compound interest and set aside orders 1 and 2 made on 5 or 8 November 2010.

(b) Otherwise dismiss the appeal.

(c) Order the appellant to pay the costs of the first, second and third respondents in respect of the appeal.

(d) Direct that the parties file amended amounts in respect of orders 1 and 2 made on 6 October 2010, calculating interest on the constituent parts of those amounts from the dates on which the amounts were paid until 6 October 2010, in accordance with the rates prescribed by the rules from time to time.

(e) Direct the Registrar to amend the amounts referred to in orders 1 and 2 made on 6 October 2010, so as to include the amounts of interest payable in respect of each order.

(f) In the event of the relevant amounts not being agreed within 28 days of the date of this judgment, direct that the matter be relisted before a judge of the Court for further directions.

(2) Dismiss the application for leave to cross-appeal of Softsand Design Investments Pty Ltd with no order as to costs.

(3) Dismiss Mr Thomas' cross-appeal with costs.

(4) In respect of the appeal of Deborah Willett:

(a) Allow the appeal and set aside order (5) made on 6 October 2010.

(b) In lieu thereof, order:

5. The plaintiffs to pay the costs of the fifth defendant.

(c) Order that the first, second and third respondents pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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