Say-Dee Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309

New South Wales Court of Appeal

Say-Dee Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 July 2005

JUDGMENT DATE: 15 September 2005

JUDGMENT OF: Mason P at 1; Giles JA at 2; Tobias JA at 3

DECISION: 1. Appeal allowed; 2. Orders made by Palmer J on 19 August 2004 and 22 November 2004 be set aside; 3. The parties to bring in draft Short Minutes of Order within 14 days to reflect the relief to be granted as indicated in the reasons for judgment; 4. Costs to follow the event; 5. Liberty be granted to the parties to apply, at the direction of the President, to Tobias JA on 48 hours' notice for further directions in the event that they are unable to agree on an appropriate form of Short Minutes to give effect to the reasons for judgment.

CATCHWORDS: EQUITY - Fiduciary Obligations - Joint venture for redevelopment of property - Fiduciary duties arising out of joint venture - Scope of fiduciary duties - Development application refused on basis that property needed to be amalgamated with adjoining properties to maximise potential - Fiduciary subsequently acquired adjoining properties - Whether fiduciary duties breached - Fiduciary's obligations of disclosure - No conflict rule - No profit rule - Causal link between fiduciary relationship and profit - EQUITY - Constructive Trusts - Whether adjoining properties held on constructive trust - Recipient liability - First limb in Barnes v Addy - Actual or constructive knowledge on part of recipient of breach of fiduciary duty - Restitutionary approach to recipient liability based on unjust enrichment - Whether acquisition of indefeasible title prevented claim for relief - Whether fiduciary entitled to allowance for entrepreneurial skills