David Alan Thomson v Golden Destiny Investments Pty Limited [2015] NSWSC 1176

Supreme Court New South Wales

Medium Neutral Citation: David Alan Thomson v Golden Destiny Investments Pty Limited [2015] NSWSC 1176 Hearing dates: 9,10,11,12,13, 16, 17,18,19 March, directions 20 March, oral submissions 13, 14, 15 May 2015, written submissions, further directions hearing 22 May 2015, directions 11 June 2015, further written submissions 12 June 2015, further directions 15 June 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Before: Sackar J Decision: See [644]-[653] Catchwords: CONTRACTS – abandonment or abrogation – whether ongoing intention to be bound – objective assessment of conduct – where one party purported to terminate agreement – nature of agreement

CONTRACTS – breach of retainer – scope of retainer – where solicitor acting for multiple parties to transaction – conflict of interest – failure to advise

CONTRACTS – rescission – rescission on basis of solicitor's conflict of interest – divergence between parties' interests – failure to advise – entitlement to rescind

EQUITY – fiduciary duties – conflict of interest – where solicitor acting for both parties to transaction – where solicitor had personal interest in transaction – whether fully informed consent sought – whether causal relationship between loss and breach of duty – appropriate counterfactual for assessing loss

PROPERTY – caveats – lodgement of caveats – refusal to withdraw caveats – caveatable interest – where contribution made to purchase price by third party – where no contractual relationship between vendor and third party – nature of interest – constructive or resulting trust – whether trust conferred a beneficial interest in land