Simpson v Donnybrook Properties Pty Ltd [2010] NSWCA 229

New South Wales Court of Appeal

CITATION: Simpson v Donnybrook Properties Pty Ltd [2010] NSWCA 229

HEARING DATE(S): 11 August 2010

JUDGMENT DATE: 9 September 2010

JUDGMENT OF: Hodgson JA at [1]; Macfarlan JA at [2]; Young JA at [4]

(1) Appeal allowed. (2) Orders 1 and 5 made by Rein J on 15 December 2009 be set aside. (3) Order that the plaintiff's claim against the first defendant be dismissed. DECISION: (4) Order that the cross appeal be dismissed. (5) Order that the plaintiff/first cross defendant and the second cross defendant pay the first defendant's/cross claimant's costs below. (6) Order that the respondents/cross appellants pay the appellant's/cross respondent's costs of the appeal and the cross appeal. (7) Order that, if eligible, the respondents have a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal.

CATCHWORDS: Contract- Loan agreement- whether appellant personally liable to repay loan- whether personal guarantee. Equitable Compensation- interest- date of calculation- non-application of limitation period from date of payment- whether consistency required that the interest be calculated from the later date of the plaintiff's discovery of its loss. Equity- Fiduciary duties- whether appellant accountant undertook to act in the interests of the respondents as their investment advisor at the relevant time- appellant made investment suggestions or advice relating to a transaction he was involved in- relationship of friendship- primary judge erred in inferring provision of investment advice. Equity- Defences- limitation of actions- Limitation Act 1969- whether against conscience and unjust to apply limitation period by analogy calculated from date of investment. Statutory Interpretation- Real Estate and Business Agents Act 1978 (WA) ss 4, 60- whether appellant was carrying on a "business" in respect of a real estate transaction- isolated one off deal relating to two parcels of land not "carrying on a business" within s 4- whether s 60 disentitles appellant from receiving "any commission, reward, or other valuable consideration in respect of his services"- unlicensed appellant without appointment in writing signed by respondents.