BLACKMAN v THOMPSON and ORS [1993] NSWCA 25

BLACKMAN v THOMPSON and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and POWELL JJA 13, 14 October 1993, 16 December 1993

[1993] NSWCA 25

TRUSTS — breach of trust — equitable relief proper to circumstances — real estate agents take advantage of withdrawal of purchaser from sale of property to acquire property for themselves — property involved in matrimonial dispute between wife and husband — trial judge (Brownie J) finds breach of duty by agents but refuses to order re-transfer of property to husband for the benefit of the wife, as sought by her — orders instead equitable compensation and return of part agent's commission — on appeal by wife (now divorced) — held: (Mahoney JA; Kirby P and Powell JA concurring):

REAL PROPERTY — real estate agent — duties of — scope of duties — obligation to use information received for the exclusive benefit of the principal and not for its own benefit — obligation to account for private advantage secured by agents — obligation to return profit derived by agents — obligation in ordinary case to submit to avoidance of sale and retransfer of property — fashioning of orders appropriate to remedy breach of trust by way of avoidance of sale — equitable compensation and recovery of commission — discussion by Mahoney JA (Kirby P and Powell JA concurring) of applicable principles.

(1) The real estate agents owed a fiduciary duty to the husband not to make any private profit or gain from the transaction for their own benefit and were (as conceded) in breach of that duty.

Greenwood v Harvey [1965] NSWR 1489 (SC) applied;

(2) It would be assumed that the wife was entitled to enforce duties of a fiduciary nature against the agents as owed to her husband;

(3) In the ordinary case, retransfer of a conveyance of real property made in breach of trust will be ordered;