Simpson v Donnybrook Properties Pty Ltd

[2010] NSWCA 229

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Fiduciary duties
3. › Investment advisor
4. › Whether accountant who was friend of investors undertook to act in their interests as investment advisor
5. › Whether friendship and informal investment suggestions sufficient to establish fiduciary relationship
6. › Twelve matters relied upon by primary judge insufficient to establish advisory capacity
1. Equity
2. › Fiduciary duties
3. › Breach
4. › Causation
5. › Onus on beneficiary to prove that but for non-disclosure they would not have entered transaction
6. › Whether surrounding facts and circumstances permit inference of causation
1. Practice and Procedure
2. › Pleadings
3. › New case raised in closing submissions in reply
4. › Whether fresh case should have been permitted
5. › Whether defendant had adequate notice
6. › Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
1. Equity
2. › Defences
3. › Limitation of actions
4. › Limitation Act 1969 (NSW)
5. › Whether against conscience to apply limitation period by analogy
6. › Consistency between limitation period and interest calculation date

Quick Take

A person described as an 'investment advisor' is not necessarily a fiduciary; the existence of fiduciary duties depends on the circumstances, and informal investment suggestions between friends — even where one party is an accountant — are insufficient to establish an advisory relationship giving rise to fiduciary obligations. A fresh case raised only in closing submissions in reply, after which the opposing party has no right of reply, should not be permitted. An isolated one-off real estate transaction does not constitute 'carrying on a business' as a real estate agent under the Real Estate and Business Agents Act 1978 (WA).