Investa Properties Pty Ltd v Nankervis (No 7) [2015] FCA 1004

FEDERAL COURT OF AUSTRALIA

Investa Properties Pty Ltd v Nankervis (No 7) [2015] FCA 1004 Citation: Investa Properties Pty Ltd v Nankervis (No 7) [2015] FCA 1004

Parties: INVESTA PROPERTIES PTY LTD (ACN 084 407 241) and INVESTA RESIDENTIAL GROUP PTY LTD (ACN 098 527 390) v ASHLEY COLIN NANKERVIS, ADAM KIMBERLY BARCLAY and OLIVER HUME SOUTH EAST QUEENSLAND PTY LTD (ACN 128 863 230)

File number: QUD 231 of 2011

Judge: COLLIER J

Date of judgment: 10 September 2015

Catchwords: EQUITY – whether senior employee owed fiduciary duties to property developer employer – fiduciary relationship – principles in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 considered – duty to avoid conflict of duty and interest – principles in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 and ABN Amro Bank NV v Bathurst Regional Council (2014) 309 ALR 445 considered – whether properties sold at undervalue – where senior employee allegedly misrepresented nature of development site to property developer employer – where senior employee allegedly failed to inform property developer employer of design work to flatten development site – where senior employee allegedly failed to disclose agreement with third party and the individual real estate agent acting on behalf of employer – where senior employee allegedly performed services for third party purchaser of property outside employment relationship – where senior employee allegedly knew of real estate agent purchasing property subject of agency EQUITY – whether sales office moved without authority – whether removal of sales office by senior employee constituted breach of fiduciary duty or breach of term of employment EQUITY – nature of fiduciary relationship between real estate agent and principal – whether limited to obligation of disclosure – where applicants claimed against real estate agency company and individual real estate agent – potential liability of both real estate agency company and individual real estate agent where property sold to company controlled by spouse of individual real estate agent – attribution of knowledge of individual real estate agent to real estate agency company – alleged fraud by individual real estate agent on real estate agent company – whether individual real estate agent breached duty of full and frank disclosure and duty of good faith EQUITY – principles in Barnes v Addy (1874) LR 9 Ch App 244 – accessorial liability – "knowing assistance" REAL PROPERTY – whether applicants failed to comply with regulations 7(1), 11, 14 and 16 Property Agents and Motor Dealers (Property Developer Practice Code of Conduct) Regulations 2001 (Qld) (the PAMDA Regulations) – where applicant and real estate agency company entered into an agreement pursuant to Form 22a Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) in respect of one property but not the other property – whether individual real estate agent or real estate agency company owed obligations in respect of residential property where there was an absence of formal agreement – where the PAMDA Regulations similar to obligations imposed in equity AGENCY – nature of fiduciary relationship between real estate agent and principal – whether real estate agent was in fiduciary relationship with alleged principal when not appointed pursuant to Form 22a PAMDA in respect of one property – where individual real estate was signatory to the agreement – whether real estate agency company breached express and implied terms of agreement – where individual real estate agent was director and employee of real estate agency company – s 133 and s 134 PAMDA – principles in Yong Internationals Pty Ltd v Gibbs [2011] QCA 161 considered – breach of duty by individual estate agent to real estate agency company where failure to disclose that spouse of individual real estate agent purchased client's property – Real Estate Agency Practice Code of Conduct EVIDENCE – expert valuation evidence – properties sold during global financial crisis – Court not obliged to accept expert evidence – methodology – weight attributed by Court to valuation opinion of third party – credibility of witnesses CORPORATIONS – s 182 and s 183 Corporations Act 2001 (Cth) – whether senior employee owed duties to property developer employer in respect of sale of two properties – s 1317H – compensation under Corporations Act – authority – directing mind and will of company