Willett v Thomas [2012] NSWCA 97

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Willett v Thomas [2012] NSWCA 97 Hearing dates: 10, 11, 12 October 2011 (Written Submissions completed 25 November 2011) Decision date: 19 April 2012 Before: Basten JA at [1] Macfarlan JA at [74] Young JA at [217] Decision: (1) In respect of the appeal by Gregory Paul Willett: (a) Allow the appeal in so far as it concerns the order for payment of compound interest and set aside orders 1 and 2 made on 5 or 8 November 2010. (b) Otherwise dismiss the appeal. (c) Order the appellant to pay the costs of the first, second and third respondents in respect of the appeal. (d) Direct that the parties file amended amounts in respect of orders 1 and 2 made on 6 October 2010, calculating interest on the constituent parts of those amounts from the dates on which the amounts were paid until 6 October 2010, in accordance with the rates prescribed by the rules from time to time. (e) Direct the Registrar to amend the amounts referred to in orders 1 and 2 made on 6 October 2010, so as to include the amounts of interest payable in respect of each order. (f) In the event of the relevant amounts not being agreed within 28 days of the date of this judgment, direct that the matter be relisted before a judge of the Court for further directions. (2) Dismiss the application for leave to cross-appeal of Softsand Design Investments Pty Ltd with no order as to costs. (3) Dismiss Mr Thomas' cross-appeal with costs. (4) In respect of the appeal of Deborah Willett: (a) Allow the appeal and set aside order (5) made on 6 October 2010. (b) In lieu thereof, order: 5. The plaintiffs to pay the costs of the fifth defendant. (c) Order that the first, second and third respondents pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: EQUITY - fiduciary duty - accountant - whether fiduciary obligations owed - breach - whether loss suffered