Cole & Anor v Manning [2002] NSWCA 150

New South Wales Court of Appeal

CITATION : Cole & Anor v Manning [2002] NSWCA 150 FILE NUMBER(S) : CA 40119/01 HEARING DATE(S) : 25 March 2002 JUDGMENT DATE : 22 May 2002

PARTIES : William Edward Cole and Stephen Edward Manning (Appellants) Warren Aubrey Miles (Respondent) JUDGMENT OF : Spigelman CJ at 1; Heydon JA at 2; Hodgson JA at 79

LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 4851/99 FILE NUMBER(S) : LOWER COURT Bergin J JUDICIAL OFFICER :

COUNSEL : Mr F P Carnovale (Appellants) Mr P M Biscoe QC/Mr M S Henry (Respondent) SOLICITORS : Gillis Delaney Brown (Appellants) Steingold Abel (Respondent) CATCHWORDS : Equity - fiduciary duty - no profit rule - acquisition of property in breach of duty - gaming permits - whether full and adequate disclosure of acquisition - remedies - Equity - remedies - equitable compensation - function and application of remedy - causation - loss of opportunity - whether presumption against fiduciaries in breach that they would have sold permits at highest price - function of remedy - whether includes punitive function - no such function - ND CASES CITED: Brickenden v London Loan & Savings Co [1934] 3 DLR 465 DECISION : See para 78

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40119/01 DC 4851/99

SPIGELMAN CJ HEYDON JA HODGSON JA

22 May 2002 WILLIAM EDWARD COLE and STEPHEN EDWARD MANNING v WARREN AUBREY MILES Judgment 1 SPIGELMAN CJ: I agree with Heydon JA. 2 HEYDON JA: This is an appeal from orders made on 8 and 23 February 2001 by Bergin J in favour of the plaintiff (Miles, the respondent) after a twelve day trial in August and November 2000. She ordered two of the defendants, Cole and Manning, to pay equitable compensation of $692,863 to another defendant, Little Caesars Casino Pty Ltd, with interest from 1 December 1999 to 23 February 2001. By consent, she ordered Cole and Manning to pay Miles' costs of the proceedings on an indemnity basis, save that she made no order as to the costs of the hearing on 23 February 2001 to the intent that each party was to pay his own costs of that day. 3 Cole and Manning appeal against the quantum of equitable compensation awarded. Miles cross-appeals against the quantum of equitable compensation. Miles also cross-appeals against the trial judge's failure to order that he should have the costs of 23 February 2001 on either an indemnity or an ordinary basis.