Jacques v Forte Enterprises Pty Ltd [2012] NSWSC 1241

Supreme Court New South Wales

Medium Neutral Citation: Jacques v Forte Enterprises Pty Ltd [2012] NSWSC 1241 Hearing dates: 6 - 9 August 2012 Decision date: 14 September 2012 Jurisdiction: Equity Division Before: Rein J Decision: Judgment against the defendants on the plaintiff's claim in the amount of $60,514 plus interest. Catchwords: PARTNERSHIP - rights and duties of partners inter se - fiduciary relationship - sale of partnership property - where more than one offer of purchase available - where one partner had personal interest in a proposed purchaser - onus of establishing fully informed consent lies on the fiduciary - where there is no evidence that this conflict of interest was disclosed to the other partner - where other partner later obtained independent legal representation to settle terms of dissolution of partnership - fiduciary's onus not discharged

DAMAGES - general principles - assessing damages for loss caused by failure to explore and potentially finalise purchase offer - need to account for uncertainties - whether agreement could be reached - possible obstacles in path of financing - general commercial uncertainties - discount of 35 per cent Legislation Cited: Civil Procedure Act 2005 Practice Note SC Gen 16 Cases Cited: Birtchnell v Equity Trustees Executors & Agency Co Ltd (1929) 42 CLR 384 Boardman v Phipps [1967] 2 AC 46 Chan v Zacharia (1984) 154 CLR 178 Maguire & Tansey v Makaronis (1997) 188 CLR 449 McKenzie v McDonald [1927] VLR 134 Pilmer v The Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31 Shears v Chisholm [1994] 2 VR 535 Thomas v SMP (International) Pty Ltd (No 4) [2010] NSWSC 984 Texts Cited: R P Meagher, J D Heydon & M J Leeming, Meagher, Gummow and Lehane's equity: doctrines and remedies, 4th ed (2002), LexisNexis Butterworths Category: Principal judgment Parties: Phillip Jacques (Plaintiff)