Mathas v Slater; Donnybrook Properties Pty Ltd v Simpson [2009] NSWSC 1397

New South Wales Supreme Court

CITATION : Mathas v Slater; Donnybrook Properties Pty Ltd v Simpson [2009] NSWSC 1397

HEARING DATE(S) : 19 - 23 October 2009

JUDGMENT DATE : 11 December 2009

JURISDICTION : Equity Division

JUDGMENT OF : Rein J

(1) Mr Simpson is liable to Donnybrook to pay $350,000 plus interest, subject to the offset of the amount referred to in (3) below; (2) Mr Slater is liable to pay to Mr Simpson a commission of $268,833 plus interest from a reasonable period after the date of sale of the property, which I would treat as four weeks from the date of sale of Lots 15 and 16; DECISION : (3) Donnybrook is liable to pay Mr Simpson $60,000 from the proceeds of sale of Hendrix, plus interest from four weeks after the sale of the horse; (4) GLSP is liable to Donnybrook for the balance of the loan account, i.e. $127,252. If that does not include interest, that will need to be calculated; (5) Mr Simpson is not personally liable for the loan balance referred to in (4) above; (6) Mr Simpson is not liable for $40,000 of Deacons' fees or the costs of defending the Deacons claim.

CATCHWORDS : EQUITY – general principles – fiduciary obligations – fiduciary relationship arising between investment adviser and advisee – whether investment adviser has breached his fiduciary obligation when failing to properly advise about an investment in which he had a conflict of interest - CONTRACTS – loan agreement, dispute as to parties to and terms of agreement – agreement to invest funds in return for a 'profit share', dispute as to parties to and terms of agreement – agreement for payment of commission for assistance in sale of property, dispute as to terms of agreement, whether s 60 of Real Estate and Business Agents Act 1978 (WA) applicable – agreement by third party to pay or guarantee legal fees, dispute as to terms of agreement – agreement to purchase horse and share profit upon sale, dispute as to the purchase price and the sharing of costs - LIMITATION OF ACTIONS – claim for equitable damages for breach of fiduciary obligations – whether limitation period applies by analogy pursuant to s 23 of the Limitation Act 1969