Smith v Autore t/as Autore & Associates Solicitors & Barristers [2022] NSWSC 656

Supreme Court New South Wales

Medium Neutral Citation: Smith v Autore t/as Autore & Associates Solicitors & Barristers [2022] NSWSC 656 Hearing dates: 11-12 May 2022 Date of orders: 24 May 2022 Decision date: 24 May 2022 Jurisdiction: Common Law Before: Schmidt AJ Decision: The case against Mrs Autore must be dismissed. I direct the parties to confer on terms of the final orders, including as to costs. Proposed orders should be filed within 14 days, together with short submissions in the event of any disagreement. Catchwords: EQUITY — Fiduciary duties — solicitor and client —solicitor transferred money from trust account to a financial services firm which made payments from funds in accordance with his directions — conflict of interest— whether informed consent was obtained from clients — breach of duty established EQUITY — Fiduciary duties — Barnes v Addy claim against solicitor's wife — funds transferred to wife's bank account— whether wife had requisite knowledge of the breach of duty to render her personally liable — not established EVIDENCE — credibility and reliability — conflict of witnesses' evidence Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Baden v Société Générale pour Favoriser le Dévelopment du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 Barnes v Addy (1874) LR 9 Ch App 244 Bray v Ford [1896] AC 44 Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23 Moriah War Memorial College Association v Augustine Robert Nosti [2020] NSWSC 942 Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 Turner v O'Bryan-Turner [2022] NSWCA 23 Category: Principal judgment Parties: Neville Smith (First Plaintiff) Helen Smith (Second Plaintiff) Anthony Autore (First Defendant) Regina Autore (Second Defendant) Representation: Counsel: D Allen (Plaintiffs) M Young SC (Second Defendant)