Spring Hill Views Pty Ltd v 2 Fella Pty Ltd & Anor [2026] QSC 36

[1] The plaintiff in this proceeding, Spring Hill Views ('SHV'), brings two claims against the first defendant, 2 Fella Pty Ltd ('2 Fella'), and the second defendant, Mr Pedro Pikos. Mr Pikos was the sole director, secretary and shareholder of 2 Fella. SHV's primary contention is that 2 Fella and Mr Pikos were fiduciaries of SHV and breached their fiduciary duties. Two claims of breach of fiduciary duty are alleged.

[2] SHV's first claim is that 2 Fella and Mr Pikos breached their fiduciary duties in arranging for Mr Pikos' then wife, Ms Jenny Pikos, to purchase 129 Gregory Terrace, Spring Hill at an undervalue.

[3] SHV's second claim alleges that the defendants overcharged or duplicated work under the Design Novation Engagement Agreement dated 6 August 2014 because that work fell within an earlier agreement - the Development Management Agreement dated 31 July 2014.

[4] It is necessary to explain some of the background first.

[5] In May 2014, Mr Pikos identified the opportunity to purchase and develop the properties at 129, 133, 137 and 149 Gregory Terrace, and 50 Torrington Street in Spring Hill, Queensland ('the Spring Hill properties').[1] On 19 June 2014 Mr Pikos, on behalf of the Pikos Group,[2] was successful in his bid to purchase the Spring Hill properties for $4,050,000, with an option for 30 days.[3]

[6] Mr Pikos then presented the opportunity to develop the Spring Hill properties to Mr Phillip Nyssen and Mr Nyssen's company, Property J V Pty Ltd ('PJV'). Mr Ian Marsden was also a representative of PJV. The idea was to use the 'syndicate structure' that had been utilised in some of Mr Pikos' previous developments.[4]

[7] PJV was obviously attracted by the investment opportunity because, on 27 June 2014, SHV was incorporated as a special purpose vehicle for the purpose of developing the land at the Spring Hill properties.[5] Mr Nyssen arranged SHV's incorporation and was its sole director until 6 August 2014.[6]

[8] On 22 July 2014, SHV issued an information memorandum about the proposed project to potential investors.[7] The information memorandum included a 'project feasibility study' dated 16 July 2014, which included expected expenses for development management, and professional fees for a novated design.[8] By the same information memorandum, SHV also noted that it was planning to reconfigure and sell two of the existing homes.

[9] A month later, on 31 July 2014, SHV appointed 2 Fella as the Development Manager for the proposed developments of the Spring Hill properties by entering into the 'Development Management Agreement' (DMA).[9] Under that agreement, the "Management Fee" payable to 2 Fella for the Development Management Services under the DMA was $540,000 (excluding GST).[10]

[10] A week later, on 6 August 2014, 2 Fella and SHV entered into the 'Design Novation Engagement Agreement' (DNA).[11] The total fee payable to 2 Fella under the DNA was $445,500 (including GST).[12]

[11] SHV also entered into other agreements, such as:

(a) the 'Syndicate Management Agreement' dated 30 July 2014, by which SHV appointed Mr Nyssen's PJV as the manager of the syndicate of investors;[13]

(b) the 'Intermediary Agreement' dated 11 July 2014, by which SHV appointed 'My Financial Advisor Pty Ltd' as the intermediary to arrange the issue of ordinary shares in SHV;[14] and

(c) the 'Shareholders Agreement' dated 6 August 2014 between Mr Nyssen and SHV which set out provisions for the governance of SHV and the conduct of its operations.[15]

[12] However, these other agreements are not the subject of this dispute.

[13] On 24 October 2014, SHV became the registered owner of the Spring Hill properties.[16] It did so as the nominee of Mr Pikos pursuant to the option agreement he had entered into with the previous owner.[17]

[14] The proposed development was to involve reconfiguration of the Spring Hill properties, the sale of two existing homes (129 and 149 Gregory Terrace), the demolition of the existing unit block, and the development of a three-story residential complex comprising 18 luxury apartments and a basement carpark.[18] The objective in selling the 129 and 149 Gregory Terrace homes was to provide some funding towards the proposed development of the balance of the site. The sites were also re-configured to add to the balance area of the site and to therefore increase the number of dwellings that could be constructed.

[15] Mr Pikos was aware of SHV's intention to sell 129 Gregory Terrace through his involvement. Mr Pikos and his then wife were interested in purchasing 129 Gregory Terrace because their daughter was attending school in close proximity to the property at the time.[19]

[16] There were two valuations of 129 Gregory Terrace, Spring Hill:

(a) a valuation dated 9 July 2014 that Mr Pikos obtained from LMW Hegney, which assessed the market value of 129 Gregory Terrace at $425,000 (LMWH valuation);[20] and

(b) a valuation dated 17 September 2014 from Jones Lang LaSalle, prepared for Westpac Banking Corporation, for the purposes of bank finance, which assessed the market value of 129 Gregory Terrace as $420,000 (JLL valuation).[21]

[17] Mr Pikos expressed his interest in buying 129 Gregory Terrace to SHV and its investors. On 25 August 2014, that is, after the first valuation had been obtained and before the second, Mr Pikos forwarded to Mr Nyssen and Mr Marsden (both of PJV) an email from Mr Pikos' lawyer attaching a draft call option agreement in respect of 129 Gregory Terrace.[22] On 27 August 2014, Mr Marsden emailed investors with an investor update which, amongst other things, outlined Mr Pikos' offer to purchase 129 Gregory Terrace and asked investors to consider and raise any objections to the sale.[23] On the same day, Mr Marsden sent a further email to investors which attached the LMWH valuation.[24] Mr Pikos' proposed purchase of 129 Gregory Terrace and the LMWH valuation were also subject of the 18 September 2014 investor meeting, which Mr Pikos attended.

[18] On 31 October 2014, Mr Pikos, as buyer, entered into a call option agreement with SHV, as seller, to purchase 129 Gregory Terrace for $420,000.[25] The option agreement allowed Mr Pikos to nominate a 'Nominee' purchaser. Mr Pikos exercised the option and nominated his then wife as the purchaser in the sale contract.[26]

[19] On 3 December 2015, a little more than a year after entering into the option to purchase, Mr Pikos' then wife entered into a contract for the sale of 129 Gregory Terrace to Dr Pubudu Wakista and Suduweli Wakista for $1 million.[27]

[20] As stated above, SHV alleges that 2 Fella and Mr Pikos became fiduciaries of SHV and relies on the alleged fiduciary duty for its claims.

[21] Fiduciary duties incorporate a central concept of loyalty "unequalled elsewhere in the law".[28] There are accepted categories where a fiduciary relationship arises (such as solicitor/client). This case is not one that falls within those accepted categories. However, the court may impose fiduciary duties outside those recognised categories. The leading Australian case on the imposition of fiduciary duties is Hospital Products Ltd v United States Surgical Corporation.[29] In that case, Mason J said:

The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf. Phipps v. Boardman), viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense.[30] The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position.[31] [emphasis added]

(a) it is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed;[32]

(b) contractual and fiduciary relationships may co-exist between the same parties and the existence of a basic contractual relationship has in many situations provided a foundation for the finding of a fiduciary relationship;[33] and

(c) the capacity of the alleged fiduciary to make decisions and take action in some matters by reference to its own interests is inconsistent with the existence of a general fiduciary relationship.[34]

[23] It is rare that a fiduciary duty will exist in a commercial transaction or relationship. Where parties deal at arm's length in a negotiated commercial transaction, and no special reliance or trust is placed by one in the other, or no special vulnerability exists, there is no justification for fiduciary law to intervene.[35] That carries particular force in the face of an agreement between substantial entities that fully prescribes their rights and responsibilities.[36]

[24] In a commercial relationship, the contracting parties are free to define the extent of each party's obligations to the other and, absent particular circumstances, there is no occasion for equity to impose further fiduciary obligations.[37] Thus, in The Paul Dainty Corporation Pty Ltd v The National Tennis Centre Trust[38] the Full Court of the Federal Court said:

...the authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. There is simply no need for the intervention of equity, to imply fiduciary responsibilities, in such circumstances.[39]

[25] To similar effect is the decision of Barrett JA in Streetscape Projects (Australia) Pty Ltd v City of Sydney:[40]

The Supreme Court of Canada emphasised in Galambos v Perez [2009] SCC 48; [2009] 3 SCR 247 that a fact-based fiduciary duty cannot arise unless one party undertakes, expressly or impliedly, to act in the particular factual context solely in the interests of the other. The word 'solely' deserves particular emphasis. That essential requirement shows why fiduciary duties, of their nature, do not ordinarily attend bargains struck at arm's length between sophisticated parties with equal bargaining power who, in pursuing their own financial ends, take care to document their respective rights and obligations in a comprehensive way. A person of that kind who makes such a bargain in that way safeguards his or her own interests and aims to achieve the particular advantage sought for the person's own benefit. The contract may import implied duties of good faith performance. One party may have a clear interest in fostering the ability of the other to perform and in seeing that other derive the advantages that the contract is intended to confer. A relationship with a contented counterparty is usually more productive than a relationship with a hostile one. But none of this alters the reality that each party's role is a selfish role, not one of self-denial and subordination of personal interest.[41] [emphasis added]

[26] The nature of the enquiry was explained by Professor Finn:

What must be shown, in the writer's view, is that the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement. The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other's affairs or so align him with the protection or advancement of that other's interests that foundation exists for the 'fiduciary expectation'.[42] [emphasis added]

[27] Assessing whether there was a fiduciary relationship requires an examination of the actual circumstances of the relationship between SHV and 2 Fella to see if SHV was entitled to expect that 2 Fella would act in SHV's interests in and for the purposes of the relationship.[43] Here, the examination of the actual circumstances involves three aspects of the relationship between the parties: their contractual relationship; their respective bargaining power; and the nature of their relationship.

[28] The DMA between SHV and 2 Fella was only one of a number of agreements that governed this development. One of the features of the various agreements, including the DMA, was to provide for the supervision of the project in a rather comprehensive way, including that:

(a) PJV acted for SHV protecting SHV's interests and the interests of the investor/directors;

(b) SHV became the owner of the Spring Hill properties and, at least in July and August 2014, proposed to enter into a contract with the builder; the building contract was to be supervised by a Superintendent acting for SHV); and

(c) 2 Fella was to coordinate with the owner (SHV), the builder, and the designers, and was to submit progress claims to SHV for the construction and development costs.

[29] That comprehensive regime carefully specified each parties' rights and responsibilities. That the parties entered into such detailed contractual arrangements is consistent with the parties having entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. It is quite inconsistent with the notion that SHV was dependent on 2 Fella or that Mr Pikos or his company had a role acting as SHV's fiduciary.

[30] The DMA of 31 July 2014 between SHV and 2 Fella had these features:

(a) SHV engaged 2 Fella as the sole and exclusive Development Manager for the property to provide the Development Management Services and to procure the carrying out of the works in accordance with the Design Brief;[44]

(b) the Development Services Work to be carried out by 2 Fella was set out in some detail in schedule 1 to the contract and included:

(i) coordination of the preparation and lodgement of all necessary documents to achieve all authority approvals required to complete the project to practical and final completion;

(ii) management and procurement of the development approval;

(iii) coordination of the design team, consultants, the builder and SHV's Superintendent so as to have the works completed in accordance with the programs, budgets and specifications as approved by SHV;

(iv) coordination of design and construction meetings and progress control group meetings;

(v) coordination and management of construction and the works;

(vi) various specific services prior to, during and after construction;

(vii) supervision and monitoring of the project manager;

(viii) arranging all insurance for the project;

(ix) assisting SHV with its obligations under financing documents;

(x) assisting SHV to appoint a body corporate manager and establish the body corporate;

(xi) coordinating the preparation of marketing materials;

(xii) coordinating the provision of contracts, drafted by the solicitor for the project, to selling agents for the sale of completed apartments; and

(xiii) monitoring the sales with the selling agents and ensuring reports are provided to SHV;

(c) 2 Fella was obliged to act in accordance with the Design Brief (a document to be approved by SHV) and could only depart from the Design Brief with the prior written consent of SHV;

(d) the roles of the parties were defined in this way:

(i) SHV was to enter into the building contract and was to appoint its own Superintendent to manage the building contract on SHV's behalf;

(ii) 2 Fella was to provide advisory and management services to SHV in accordance with the DMA to assist SHV to develop the property in accordance with the Design Brief;

[31] It can be seen that the roles of the parties were carefully defined. The DMA gave SHV a significant degree of control over the conduct and performance of 2 Fella as the Development Manager. That is perfectly consistent with an ordinary commercial relationship and it is inconsistent with the idea that SHV was vulnerable to the conduct of its alleged fiduciary, 2 Fella.

[32] In fact, the DMA was at pains to reserve to SHV a substantial degree of control over the project. The role of 2 Fella was carefully limited to the role prescribed by the DMA. The decision-making power rested with the Project Control Group, which included a representative of SHV as its chair. 2 Fella certainly did not have a broad brief to act generally on behalf of SHV or as SHV's fiduciary.

[33] The drafting of the DMA could have, but did not, include fiduciary duties or good faith obligations amongst the careful explanation of each parties' rights. In fact, the agreement expressly permitted both parties to exercise rights or remedies even if the exercise of those rights involved a conflict of interest or a personal interest.[47] That is at least a reasonable indication that the draftsperson did not contemplate that the parties were in anything other than a commercial relationship.

[34] Consequently, the terms of the contract between the parties are quite inconsistent with there being a fiduciary relationship between them.

[35] Incidentally, I do not accept 2 Fella's submission that a fiduciary duty could not exist because 2 Fella's role did not explicitly include an obligation to sell 129 or 149 Gregory Terrace. As explained in the previous subsection, the proper approach requires an examination of the actual circumstances of the relationship between SHV and 2 Fella to see if SHV was entitled to expect that 2 Fella would act in SHV's interests in and for the purposes of the relationship. That involves an examination of the substance of the relationship.

[36] SHV argued that fiduciary relationships have been found in cases where a manager acts for another in the context of contractual arrangements. SHV points to cases such as Allstate Explorations NL v Beaconsfield Gold NL[48] and Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd.[49]

[37] In Allstate the relevant issue was whether an order should be made that a separate question of law be decided as to whether the Manager in that case could be subject to any fiduciary duty as alleged in the pleadings in carrying out joint venture activities in accordance with programs and budgets approved by the Management Committee under the joint venture agreement. An interlocutory decision on whether a separate legal question should be decided is of limited utility in this context. That is especially the case because Santow J acknowledged that a determination of whether a fiduciary duty can be imposed necessarily requires reference to the factual matrix of the parties' relationship.[50]

[38] Oliver Hume was complex. The Full Court examined in some detail the various relationships. Some were found to be fiduciary in nature. Others not. The point is that the issue is a question of fact in each case.

[39] In any event, the term 'manager' is apt to describe any number of roles. Here, 2 Fella was described as 'Development Manager' but, as will be explained, the role was defined.

An Unequal Relationship - Inequality of Bargaining Power?

[40] This is not a case where substantial corporations were involved on either side. However, the case does involve experienced businesspeople.

[41] Counsel for SHV attempted to portray the relationship between SHV and Mr Pikos as an unequal relationship. The submission was that Mr Pikos was an experienced property developer with an extraordinary breadth and depth of experience in property development having developed and managed over $5 billion of residential and commercial property. Mr Pikos was said to be the "driving force" behind the Pikos Group and 2 Fella.[51]

[42] Counsel for SHV also stressed that it was Mr Pikos who had identified the opportunity to purchase and develop the Spring Hill properties, and it was Mr Pikos who put that opportunity to Mr Nyssen with a view to utilising the syndicate structure that had been used for Mr Pikos' previous developments. In fact, Mr Pikos referred opportunities to a few different groups of investors.

[43] The problem with SHV's attempt to characterise the relationship as an unequal one is that, for the characterisation to work, it is necessary to look at both sides of the relationship. It is true that Mr Pikos was an experienced property developer. But no evidence established that SHV and the investors behind it were 'babes in the wood'. They were experienced businessmen. That is clear from both their backgrounds and their interactions with Mr Pikos.

[44] One of the investors, Mr Andrew Smith, is retired but was an energy and resources partner at Jones Day in Brisbane, and prior to that, an energy and resources partner at Clayton Utz. Both Jones Day and Clayton Utz are prominent legal firms. Mr Smith and his wife are directors of a company, Brance Proprietary Limited, which came to be a shareholder in SHV but, as Mr Smith explained, not in its own right, but as the trustee of the Enniscorthy Trust.

[45] SHV's syndicate manager and prime mover,[52] Mr Phillip Nyssen, did not give evidence. However, the documentation that was in evidence showed that by 2014, Mr Nyssen had been leading property development syndicates for a decade. He had substantial experience in the disciplines of business strategy, project management, governance and property through working for McKinsey & Co, PricewaterhouseCoopers, Property Advisory and National Australia Bank. He had a real estate licence. Mr Smith who, as explained, was a retired solicitor, relied on the experience of Mr Nyssen.

[46] Mr Nathan Dick was an experienced businessperson. Until about 1997, Mr Dick was working in New York for Estée Lauder's son, Ronald Lauder, who was managing the Estée Lauder fortune. He did investment analysis for Mr Lauder. From about 1997, Mr Dick was the sole director and managing director of My Financial Advisor Pty Ltd. In 2002, that company obtained an Australian Financial Services Licence, which it has held ever since. The business gives advice to retirees or to people planning for their retirement.[53]

[47] Mr Dick met Mr Nyssen at an Ipswich Grammar versus Brisbane Grammar School rugby match. Mr Smith met Mr Nyssen at a function for the Brisbane Girls Grammar father's group, probably at Marrapatta, which is the school's country estate.[54]

[48] No other investor/directors gave evidence. The Information Memorandum for this investment required that any investors qualify as sophisticated investors. The inference that can be drawn from that fact and the investors described above is that all investors were sophisticated investors in both the technical sense and the colloquial sense.

[49] On the evidence, I cannot discern any inequality in bargaining power. The representatives of SHV were not vulnerable, nor were the investor/directors who were represented by SHV. The relationship between SHV and Mr Pikos was an ordinary and arm's length commercial relationship.

[50] That conclusion is reinforced by the way the parties interacted. An example can be given. On 25 August 2014, Mr Pikos sent to Mr Nyssen and Mr Marsden the contract and call option to purchase. The draft contract had been prepared by Mr Pikos' lawyers. He asked for an estimate as to when he could expect the signed contract. Mr Nyssen asked by email for the valuation as the investors/directors had not seen it. He informed Mr Pikos that the investors/directors would need to approve the sale and there would have to be an investor meeting first. Mr Nyssen referred to there being three of four weeks before the sale could be reviewed and approved.

[51] In his rather disgruntled response later that day, Mr Pikos complained:

"why 3-4 weeks is required when you have told me that you have spoken to all investors seems like you are just bogging down a pretty straight forward deal."

[52] Mr Nyssen responded pointing out that, whilst he had spoken to investors/directors in principle, he had not canvassed the details with them. He said the process would require the valuation to be sent to investors/directors and a decision by them at the first investor meeting.[55]

[53] Mr Pikos seemingly accepted that process by sending the LMWH valuation to Mr Nyssen and others. But, for present purposes, it is clear that Mr Nyssen was not going to pushed or rushed into a sale to Mr Pikos or his nominee. That was so even though Mr Nyssen and Mr Marsden as the PJV representatives were in favour of the sale to Mr Pikos. Their view was that proper process needed to be followed and that involved the investor/directors receiving a copy of the valuation and then a meeting of investors to discuss the issue.

[54] To use the language of the cases discussed above, there is no basis for concluding that Mr Pikos was here acting as a fiduciary who undertook or agreed to act for or on behalf of or in the interests of SHV or the investor/directors. Mr Nyssen and Mr Marsden were vigilant to look after the interests of their investor/directors. They were vigilant to follow proper process, and to do that in spite of some pressure from Mr Pikos. That process involved Mr Pikos being candid about his interest in the property, obtaining an independent valuation, attending a meeting where the issue of Mr Pikos' proposed purchase was openly discussed, and a making commercial decision.[56]

[55] The parties entered into contractual arrangements that fully prescribed their respective powers and duties. Nothing in the contract itself suggests that the parties intended that Mr Pikos or his company were undertaking or agreeing to act for or on behalf of or in the interests of SHV in the legal and practical sense described by Mason J in Hospital Products Ltd v United States Surgical Corporation.[57] There is no evidence that establishes that there was an inequality of bargaining power. The interaction and conduct of the parties did not show that there was any special reliance or trust placed by one in the other, nor that any special vulnerability existed.

[56] There is no need for the intervention of equity to imply fiduciary obligations.

[57] I therefore reject the submission that Mr Pikos was bound by fiduciary obligations to SHV.

[58] It is necessary to consider the sale of 129 Gregory Terrace.

[59] On 27 August 2014, Mr Marsden and Mr Nyssen (of PJV) issued an investor update which included the following:

"3. Existing Houses - As you are aware, part of the feasibility of the project was the sale of the two existing properties at 129 and 149 Gregory Terrace for $1,200,000. We commissioned valuations on these two properties and they are as follows:

129 Gregory Terrace - Residential House with 4 bedrooms and 1 bathroom.

4. Proposed sale of 129 Gregory Terrace - This has been discussed with many of you however, Pedro [Pikos] has offered to buy this property at the recently received valuation. Given its dilapidated state, heritage restraints due to being built prior to 1911, this property is a difficult selling proposition. Pedro has plans to renovate the house and convert it into offices for the Pikos Group. As the syndicate managers, we believe the sale should proceed on the basis that the proceeds of the sale will assist significantly with our financing of the land and the potential delays, difficulties and selling costs associated with a sale to another party.

We would therefore ask that if you have any objection to the sale, please contact either Phil or I direct within the next 48 hours, so we can discuss your concerns ..."[58]

[60] Evidently one potential investor, Mr Stanley, communicated a concern. On 28 August 2014, Mr Marsden sent him an email which was as follows:

"To begin, both Phil and I and Pedro agree that there is a potential governance issue present if the proposed transaction goes ahead. We also strongly agree that Property JV have a duty of care to the syndicate members in acting in their best interests in all matters and at all times.

To give some context to the process, the following points should be made:

1. Being mindful of the potential conflict a valuation was arranged to be undertaken by an independent, residential valuer with whom neither the Pikos Group nor Property JV have dealt with previously. In addition to providing a degree of independence, a residential valuer was deemed to be the most cost effective option for the syndicate.

2. Part of the strategy of the project is to remove all allowable GFA[59] from the two existing houses, with the majority coming from 129 Gregory Terrace, the property in question. In fact, the allowable GFA enables the syndicate to build an additional 5 units. The valuation does not reflect the removal of allowable GFA, and if it did, it would have a significantly negative effect on the valuation.

3. Given the condition of the house and the minimum estimated costs of restoration starting at 700k, the pre 1911 construction almost eliminating any possibility of demolition and finally the removal of GFA, the sales risk for the property can only be assessed as high.

4. The transaction would eliminate sales costs and Pedro has agreed that no reduction in the sale price occurs as a consequence.

We believe that the valuation/sales price reflects fair value given the above factors." [emphasis added]

[61] The wording of that email had been cleared with Mr Pikos and copied to Mr Nyssen before it was sent.

[62] That email makes clear that Mr Nyssen, Mr Marsden and Mr Pikos were aware of the conflict situation. They were conscious of the need for an independent valuation - an issue I will come back to shortly. And they were aware that there was a benefit to SHV and the investor/directors in selling the two properties and in selling 129 Gregory Terrace without risk, or cost, or delay. They were aware also that in selling 129 Gregory Terrace with the reconfiguration of the properties, SHV received the benefit of increased 'gross floor area' for the development - resulting in the ability to develop five additional apartments.

[63] The evidence about what happened at the meeting on 18 September 2014 is rather sparse. Certainly, those at the meeting discussed the proposal that Mr Pikos purchase 129 Gregory Terrace. The meeting included a discussion of:

(a) Mr Pikos' desire to purchase the property and his reasons for wanting to purchase the property;

(b) the LMWH valuation being a guide to the price Mr Pikos was willing to pay;

(c) the LMWH valuation being a low valuation;[60]

(d) the independence and competence of the LMWH valuation;[61] and

(e) whether or not the investors should accept the LMWH valuation, or adopt the alternative and go to the market to try and get a higher price.[62]

[64] The likelihood is that all at the meeting were in favour of the sale to Mr Pikos. However, the next day Mr Pikos sent an email to Mr Nyssen saying that:

"after last nights meeting I think it would be advisable that you do a quick ring around with investors to make sure they are happy for us to proceed with the purchase of Gregory Terrace from the syndicate. I am conscious of the fact that some investors may want to express their thoughts without me in the room and I do not want any investor to feel that they had no choice, so on that basis can you please speak to all investors individually and confirm they are happy for us to proceed with our investigations and your contract signing. I have also forwarded all correspondence with the insurance company so we can develop a strategy on how we deal with the exposure of no public liability on the old house. I await your advise ..."

[65] Mr Nyssen responded agreeing to Mr Pikos' proposed course of action. And so, the decision to sell to Mr Pikos had not yet been made and Mr Pikos was endeavouring to ensure that all investor/directors were able to express their views without him in the room. Also clear at this time was the existing problem that the continued ownership of the property caused - hence the reference to insurance on the old house.

[66] By 25 September 2014, Mr Nyssen emailed Mr Marsden saying that he thought all investors were 'onboard' with the idea of selling the property to Mr Pikos. However, Mr Nyssen, Mr Marsden and Mr Pikos agreed to wait until receipt of a valuation from Jones Lang LaSalle Advisory Services Pty Ltd (JLL). The JLL valuation was received by Mr Pikos on 30 September 2014. He immediately forwarded it to Mr Nyssen and Mr Marsden.

[67] On 13 October 2014, Mr Marsden emailed investors (copying Mr Pikos) regarding the finalisation of the call option agreement for the Pikos Group to purchase 129 Gregory Terrace at the stated valuation by JLL of $420,000.[63]

[68] On 31 October 2014, Mr Pikos and Mr Marsden executed an option agreement which enabled Mr Pikos or his nominee to purchase 129 Gregory Terrace for $420,000.

[69] SHV, rather belatedly, claims that the option agreement was not signed for or on behalf of SHV. SHV claims that Mr Marsden was not and never has been a director of the plaintiff. However, at the time of the execution of the option agreement, Mr Marsden was employed by, or worked for, PJV. PJV was the manager of the syndicate of investors, all of whom became investor/directors of SHV, the special purpose vehicle.

[70] In any event, the option was exercised and the sale from SHV to Mr Pikos' then wife was completed in April 2016. At no point in that process did SHV disclaim Mr Marsden's authority to execute the option agreement. No application has been brought to unravel any of the transactions. And, no person from SHV gave evidence that Mr Marsden had no authority to execute the option agreement.

[71] Counsel for SHV describes the email of 28 August 2014 (quoted above) and, in particular, the sentence emphasised above, as "fundamentally misleading".[64]

[72] The first problem with that submission is that this was not Mr Pikos' email. It was Mr Marsden's email. Mr Pikos saw it before it was sent, as did Mr Nyssen. The likelihood is that Mr Pikos did not notice the error in the email. His evidence was that he does not read every document that is put in front of him and that he 'breezed over' the email.[65]

[73] The second problem is that it is difficult to see that there was a fundamental or even a substantive deception in the email. The LMWH valuation was carried out by Mr Henderson. SHV's complaint is that Mr Henderson was neither independent nor a valuer who had not dealt with Mr Pikos previously. However, Mr Henderson's prior contact with Mr Pikos was relatively fleeting. SHV's submissions describe the contact as follows:

(a) Mr Henderson took care of a job for Mr Pikos in 2007, providing him with information from another development called Reflection Tower;

(b) Mr Pikos (as Managing Director of the Pikos Group) emailed Mr Henderson about "Queens Rd" in Hamilton on 13 May 2010; and

(c) Mr Pikos had telephone calls with Mr Henderson on 7 January 2014 concerning 37 Oriel Road.[66]

[74] Those three contacts, over the course of seven years, were not shown to be substantial or to have involved any payment of professional fees. Mr Henderson was not shown to be regularly retained by Mr Pikos or his companies. The evidence did not even go so far as to show that, prior to August 2014, Mr Henderson had been retained to perform valuation work for Mr Pikos or his companies. Prior to July 2014, Mr Henderson had undertaken two valuations of properties owned by Mr Pikos, but those valuations were carried out pursuant to the instruction of lenders, not Mr Pikos.[67]

[75] In my view, the three contacts were mere incidental contact by two men working in the same field. As Mr Pikos explained, developers were burdened with only using a very small number of valuers that are accepted by all the big four banks and are on their panels.[68]

[76] Consequently, I do not accept SHV's submission that the two men had a pre-existing relationship or that, as SHV's submissions rather exaggerate: "Mr Pikos had had interactions with Mr Henderson for many years".[69] To the contrary, the absence of something that could properly be described as a pre-existing relationship was the effect of the evidence of both Mr Pikos and Mr Henderson - which I accept.

[77] Certainly, as explained, the two men had been in contact and so it was inaccurate for Mr Marsden's email to say that they had not dealt with each other. But they did not have a pre-existing business relationship of any significance and the contact they did have could not properly be regarded as impairing Mr Henderson's professionalism or his independence.

[78] There is a second aspect to SHV's attack on the independence of the LMWH valuation. When Mr Pikos arranged for the valuation, he told Mr Teitzel of LMW Hegney that he expected the valuation of 129 Gregory Terrace to come in around $400,000. Mr Henderson explained that it was standard process to request an owner's estimate from the client.[70] That process was not followed for 149 Gregory Terrace which LMW Hegney was also valuing. But I do not infer anything untoward in that.

[79] The underlying assumption in these submissions is that any prior involvement with the client, and any suggestion by the client of a preferred end point, deprives the professional of independence. I do not accept that assumption. Lawyers, for example, may act for a client in one matter and against the client in another. The lawyer will generally only be disqualified from acting for the second client if the lawyer has received confidential information from the first. Similarly, a client may suggest that the client would prefer that the advice of the professional, such as a lawyer, an accountant or a valuer, arrive at point A. The professionalism and independence of the lawyer or accountant may well mean that the lawyer or accountant arrives at point B, notwithstanding the preference of the client.

[80] Professional advisors are accustomed to advising their clients in circumstances where the client would prefer a particular outcome. Clients are only rarely agnostic. A hallmark of a professional is to give the advice on its merits. The circumstances here do not suggest that Mr Henderson adopted an unprofessional approach. As explained below, Mr Henderson clearly gave the difficult valuation some time and effort.

[81] And so, I do not accept that Mr Pikos' prior estimate of the market value for 129 Gregory Terrace somehow impaired Mr Henderson's professionalism or independence.

[82] SHV's submissions went further. SHV contended that Mr Pikos was involved in the preparation of the LMWH valuation.[71] There is no evidence that supports that submission. The fact that Mr Pikos expressed a view about the market value of the property, and his email exchange on the progress of the valuation, hardly constitutes an involvement in the preparation of the valuation.

[83] Before considering whether the sale of 129 Gregory Terrace was at an undervalue, it is necessary to clear away some deadwood.

[84] First, there was a valuation of 129 Gregory Terrace by Jones Lang LaSalle Advisory Services Pty Ltd as at 17 September 2014. The valuation was prepared for Westpac Banking Corporation. However, that valuation was inadmissible as to the market value of the property[72] because the author of the valuation report was not called to give evidence.

[85] Second, SHV argued that it was 'telling' that a year or so later, on 3 December 2015, 129 Gregory Terrace was sold by Mr Pikos' then wife to the Wakistas for $1 million. That subsequent sale was not shown to be relevant. No evidence suggests that the market for Spring Hill property in December 2015 was the same or even similar to the market in September 2014. And the subsequent sale itself was something of a one-off.[73] I reject the submission that the subsequent sale is 'telling' or even relevant.

[86] As it turned out, the valuation of 129 Gregory Terrace was a difficult exercise. Mr Henderson himself said he was "going grey trying to work out" the market value of 129 Gregory Terrace. Mr Pikos said to Mr Henderson that given the risks he would prefer Mr Henderson to be conservative. Mr Henderson replied: "Yep, i am just trying to find that one sale to hang my hat on, proving difficult at this stage." That is an explicit and contemporaneous statement that finding a comparative sale was proving difficult. Implicitly, Mr Henderson's reply makes clear that he was not going to be rushed and that he was taking some care and effort to find a proper comparator.

[87] The context was that the property at 129 Gregory Terrace was, as Mr Henderson noted, a difficult property to value. The LMWH valuation itself explained the difficulties:

"This is a difficult property to value as the house is in such poor condition. The pre 1911 construction of the house would make it very difficult to demolish with the existing Council heritage overlays and constraints in place. The house is not habitable at present and appears to have significant structural issues with some stumps sunk, the floor is uneven in places and there is evidence of termite infestation.

It is well beyond my expertise to estimate a cost to renovate the subject property as I do not know the extent of works required and what structural issues exist although it is clear they will be extensive. The poor condition of the house, its large size and the resultant high cost to renovate the improvements and the heritage constraints actually detract from the value of the land.

In ascertaining market value I have used a variety of house sales in inner city localities. The improvements on all three sales are in poor condition however they appear structurally sound and the houses are much smaller therefore the cost to renovate is substantially less which makes these properties considerably more attractive than the subject property.

It is very difficult to ascertain a market range for the subject property however based on the limited sales evidence I consider they support a market range of $400,000 to $450,000 and have adopted mid range at $425,000.

I have been advised the land is being resurveyed and will comprise a land area of 475m2. I have carried out the valuation on this basis. If the surveyed area is different from this the valuation should be referred back for comment.

The assessed market value is based on estimated selling period of 0 to 6 months at the valuation figure herein, subject to a professional marketing campaign through a agent/agency experienced in this location.

After an extensive search for comparable sales, we advise that the sales used in this report are the most recent and most comparable to the subject. We are unaware of any further comparable sales in the immediate vicinity within 6 months and 15% of the market value of the subject with similar land or improvements."

[88] The valuation was conducted by means of the direct comparison method in circumstances where there were either no or very few comparative sales. As the experts' joint report records, due to the poor condition of the house, it was challenging to provide directly comparable sales evidence.[74] Mr Henderson was candid about the difficulty of the task at the time of his LMWH valuation. The essential problem was that the house was so dilapidated that the only rational decision was to demolish the dwelling and yet, because of the heritage value of the house, the local council would not permit demolition.

[89] That context was significant because the Mr Henderson's task was a challenging one. His task involved comparing 129 Gregory Terrace against comparable sales evidence when there were no truly comparative sales.

[90] In arriving at his LMWH valuation, Mr Henderson used three comparable sales: 102 Elizabeth Street, Paddington; 26 Oxford Street, Woolloongabba; and 71 Norman Street, East Brisbane. SHV contends that there are significant flaws in the LMWH Valuation, particularly in respect of the selection and use of comparable sales evidence. SHV contends that the true value should have been in the order of $750,000 consistent with the expert opinion of Mr Hugh Bristow.

[91] As the joint expert report makes clear, Mr Henderson considered that the most weighting should be given to heavily depreciated homes in the inner city and that nearby sales in Spring Hill, while considered, do not form the best comparison of evidence. On the other hand, Mr Bristow considered that Spring Hill should have been the focus of sales analysis and that, whilst not a simple task, there was sufficient evidence available capable of rational adjustment to reconcile market value.[75]

[92] I prefer Mr Bristow's opinion over that of Mr Henderson. None of Mr Henderson's comparable sales are located in Spring Hill, which is a distinctive suburb. Mr Henderson's comparable sales are all located in different locations in inner city suburbs that are not suitable comparable sales to 129 Gregory Terrace, particularly given the favoured position of 129 Gregory Terrace.[76] I accept SHV's submission that Mr Henderson attached too much importance on choosing comparable sales based on the dilapidated condition of buildings located on the properties. I prefer Mr Bristow's approach which was to focus on sales in Spring Hill, particularly the sale at 44 Torrington Street, Spring Hill.[77]

[93] That said, I do not accept that Mr Henderson's valuation was improper.[78] Mr Henderson's valuation was flawed for the reasons explained and, as a result, he arrived at a valuation that was too low. But this is not a negligence case. The court is not required to assess whether Mr Henderson's approach was beyond the range that would have been arrived at by a reasonably competent valuer. SHV's case is that Mr Pikos owed SHV fiduciary obligations and that, in breach of his fiduciary obligations, Mr Pikos arranged for a sale of 129 Gregory Terrace at an undervalue. For the reasons I have explained I do not accept that the parties were in a fiduciary relationship. If I am wrong in that conclusion then I would conclude that the property at 129 Gregory Terrace was sold at an undervalue and Mr Pikos would be obliged to make good the difference in the value ($750,000 less $425,000).

[94] However, there is a further problem for SHV. In my view, even assuming Mr Pikos owed SHV a fiduciary duty, the conflict was disclosed and informed consent was given.

[95] Disclosure and informed consent will operate as a defence to a claim of a sale in breach of a fiduciary duty. As the plurality of the High Court said in Maguire v Makaronis:

What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.[79]

[96] Here, SHV and the investor/directors knew that Mr Pikos was proposing to proceed with the purchase of 129 Gregory Terrace for his own benefit or for the benefit of his wife. He was transparent about his family's interest in the property. His interest was clear in a number of emails.[80]

[97] It is plain that SHV and its investors/directors carefully considered Mr Pikos' offer to buy 129 Gregory Terrace. SHV supported the sale, and the proposal was considered at the meeting on 18 September 2014. At that meeting there was a discussion as to both the independence of the valuation and as to its competence.[81] There is no clear evidence as to what precisely was discussed but the fact that those at the meeting discussed both the independence and competence of the LMWH valuation means that, at the least, there was a substantive discussion of the valuation in the context where SHV's representatives were reasonably experienced businesspersons and were actively looking after the interests of their investor/directors - who also had some experience.

[98] The commercial context, of course, was that the net proceeds of 129 and 149 Gregory Terrace were needed to progress the development. Mr Smith described the sale of 129 Gregory Terrace as an 'integral' part of the financing of the project. And, for so long as it was owned by SHV, the dilapidated house presented a problem. Squatters were there. There was a fire risk. Secure fencing had to be procured.[82] There were insurance issues to consider. Mr Pikos' offer could have been declined. But there were risks in doing that. There may have been delays and expense whilst the property was marketed. SHV may or may not have achieved a price in the vicinity of Mr Pikos' offer. In the circumstances, there is every reason for concluding that the meeting decided to go with the 'bird in the hand' commercial option. That seems clear from Mr Smith's evidence that Mr Pikos' offer was 'in the ballpark' and the sale to him was a "tremendous series of positives".[83]

[99] In my view, the decision made at the meeting was an informed consent. In making that finding, I acknowledge that it is particular to the facts of this case and that it is not often that informed consent can be inferred.[84]

[100] Thus, if 2 Fella or Mr Pikos owed a fiduciary duty to SHV (contrary to the finding above), the details of the proposed sale were properly disclosed to SHV and SHV gave its informed consent.

[101] One further issue needs to be considered here. SHV submitted that the sale of 129 Gregory Terrace at an undervalue, without the knowledge or consent of SHV, means that there was no fully informed consent.[85] I do not accept that submission.

[102] SHV and 2 Fella had access to the LMWH valuation. They considered that valuation. It was described as 'low'. SHV and the investor/directors weighed the risks of accepting the offer as against rejecting it. Then, before the call option agreement was signed, the parties received the JLL valuation. They made a commercial decision to enter into the call option agreement.

[103] The problem with SHV's submission is that it fails to embrace the circumstances at the time, and it fails to acknowledge the circumstances that:

(a) the sale of 129 Gregory Terrace was always contemplated as necessary in order to partially fund the development;

(b) SHV and the investors carefully considered the valuation, and the price offered, and the difficulties in going to market and the potential costs and delays;[86] and

(c) for sound business reasons, they decided to accept the offer.

Part D: The Development Management Agreement and Design Novation Agreement

[104] SHV alleges that 2 Fella breached its fiduciary duties by:

(a) proposing to the plaintiff the Design Novation Document, charging or accepting fees under it (where such work fell within the DMA), or

(b) overcharging for work that 2 Fella performed to the extent of overlap between the Design Novation Document and the DMA.[87]

[105] SHV accepts that this claim turns on whether 2 Fella was in a fiduciary relationship with SHV.[88] For the reasons previously explained, I do not accept that a fiduciary relationship existed.

[106] In any event, there are three further problems with this claim.

[107] First, the complaint is a rather peculiar one. It is hard to see how it could be a breach of any duty for 2 Fella to propose a further agreement and for SHV to agree to that agreement. SHV and its representatives are not said to have been suffering from any incapacity at the time the Design Novation Document was executed. Mr Nyssen signed it,[89] and there is no evidence that he was overborne or even convinced to sign it. As explained, Mr Nyssen did not give evidence and so it can be assumed that his evidence would not have assisted SHV.[90]

[108] Second, it is difficult to interpret the Design Novation Agreement or its purpose. That agreement between 2 Fella and SHV was executed on 6 August 2014 - a week or so after the execution of the DMA. The Design Novation Agreement seems to complement the DMA because it records that 2 Fella "has been engaged by [SHV]" to undertake certain listed works. Then it identifies some items not included in the 'fee proposal'. Table A lists certain disciplines to be retained with a total cost of $445,500. And then SHV certifies that it has read and understood the engagement agreement and agrees with all terms and conditions 'as stated above'.

[109] In short, the Design Novation Agreement is meaningless. It contains no operative provisions. Neither party sued for a breach of that agreement and neither party sought rectification or a declaration as to its proper interpretation. It can hardly be a breach of duty for the parties to willingly enter into a meaningless or uncertain transaction which by its terms appears to have no impact on either parties' legal rights.

[110] Third, the DMA did not require 2 Fella to pay the fees of the builder, the local council or consultants. The building and development costs were to be paid by SHV. In fact, what happened was that, if costs incurred by the development were within the various categories listed in the Design Novation Agreement, 2 Fella paid those invoices. If they were outside those categories, then SHV paid those costs.[91] Possibly the parties had some view as to how the two agreements ought to be construed.

[111] None of that sustains a breach of fiduciary claim.

[112] Given the findings made above it is unnecessary to consider the further defence of delay.

[113] However, if I am wrong in the findings I have made concerning the relationship between the parties, I would refuse SHV any equitable relief. As the submissions for 2 Fella point out:

There is a delay of almost 8 years between SHV's receipt of the LMW Valuation and the commencement of the proceedings. There is a delay of almost 7 years between the exercise of the [call option agreement] and the commencement of the proceedings. No evidence was given by SHV as to any explanation for the delay in commencing proceedings, particularly given that SHV has had legal advisors since 25 June 2014 and Mr Dick, the now sole director of SHV, has been involved in the Project in some capacity since about 26 June 2014.

[114] That delay becomes stark when one considers that the trial involved events that had occurred more than a decade ago. SHV, for example complained that there was no clear explanation as to the allocation of costs by 2 Fella under the Design Novation Document or the DMA.[92] It is not surprising that clarity has been lost given the delays.

[115] SHV argues that there is no pleading or proof as to when SHV had the requisite degree of knowledge of the facts to support a finding of laches. In fact, the delay is significant. Lawyers, including a silk, were engaged in 2014, 2018, 2020 and 2021. It was for SHV to explain when, in fact, it became aware that 129 Gregory Terrace was sold at an undervalue or that the Design Novation Document effected a breach of fiduciary duty. There is no satisfactory explanation.

[116] For the reasons stated above, I find that 2 Fella and Mr Pikos did not owe SHV a fiduciary duty. For that reason, both claims must be dismissed.

(a) although the sale of 129 Gregory Terrace was at an undervalue, 2 Fella and Mr Pikos fully disclosed the proposed sale and SHV gave its informed consent to that sale;

(b) nothing in 2 Fella's proposal of the Design Novation Document, or in SHV's agreement to that document, or in any conduct by 2 Fella in charging or accepting fees under the Design Novation Document, constitutes a breach of fiduciary duty; and

(c) equitable relief should be refused because of the delay in bringing the proceedings.

[118] The claims will be dismissed. I will hear the parties on costs.

[1] Defendants' closing submissions dated 24 October 2025 (Defendants' closing submissions) at [3].

[2] Pikos Group was the name of Mr Pikos' group of companies.

[3] Defendants' closing submissions at [10].

[5] Plaintiff's closing submissions dated 17 October 2025 (Plaintiff's closing submissions) at [34].

[6] Defendants' closing submissions at [20].

[8] Defendants' closing submissions at [24] to [27].

[9] Plaintiff's closing submissions at [89].

[10] Defendants' closing submissions at [40].

[11] Defendants' closing submissions at [47].

[12] Plaintiff's closing submissions at [94(c)].

[13] Defendants' closing submissions at [30].

[14] Defendants' closing submissions at [21].

[15] Defendants' closing submissions at [33].

[16] Plaintiff's closing submissions at [36].

[18] Plaintiff's closing submissions at [38].

[19] Defendants' closing submissions at [63]. Mr Pikos' motivation for the purchase may have changed because an investor update issued by Mr Marsden on 27 August 2014 recorded that Mr Pikos planned to renovate the house and convert it into offices for the Pikos Group.

[20] Defendants' closing submissions at [57].

[21] Defendants' closing submissions at [60]. The JLL valuation was not accepted into evidence as evidence of the market value of the property. It was accepted into evidence on a limited basis. This issue is discussed further in Part C.

[22] Defendants' closing submissions at [64].

[23] Defendants' closing submissions at [67].

[24] Defendants' closing submissions at [69].

[25] Defendants' closing submissions at [79].

[26] Plaintiff's closing submissions at [127].

[27] Defendants' closing submissions at [113].

[28] Dal Pont, Equity and Trusts in Australia (Thomson Reuters, 8th ed, 2023) 97 [4.10].

[29] [1984] HCA 64; (1984) 156 CLR 41.

[30] The plaintiff's submissions rely on this sentence as the critical feature in their submissions at [140].

[31] n 32 at 96, 97. Mason J dissented in the Hospital Products case. However, His Honour's remarks as to the principles have been accepted and are consistent with the principles applied by the majority.

[32] n 32 at 97 citing Weinrib, "The Fiduciary Obligation", University of Toronto Law Journal, vol. 25 (1975) pp.4-8.

[35] Dal Pont, supra, at 137, [4.265].

[37] Daniels Corporation International Pty Ltd v Australian Waste Services Pty Ltd [2003] QSC 192 at [18].

[38] [1990] FCA 163; (1990) 22 FCR 495.

[39] Ibid, 515-516. This passage was quoted and relied on by Atkinson J in Daniels Corporation International Pty Ltd v Australian Waste Services Pty Ltd (supra).

[40] [2013] NSWCA 2; (2013) 85 NSWLR 196.

[41] Ibid at 219 (Meagher and Ward JJA agreed with Barrett JA). This passage was relied on by McMurdo J in Baldwin v Icon Energy Ltd (No 2) [2015] QSC 286 at [55].

[42] Professor Finn, "The Fiduciary Principle": see Youdan TG (ed), Equity Fiduciaries and Trusts, Law Book Co, 1989, at p 46-47. This passage has been quoted with approval by Jacobson J in

Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited (No 4) [2007] FCA 963; (2007) 160 FCR 35 at [274] and by Dowsett J in Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd (2018) 259 FCR 43 at [39]. Dowsett J dissented but the majority (Greenwood and White JJ) accepted Dowsett J's analysis of legal principles.

[43] This is an adaptation of the words of Professor Finn ("The Fiduciary Principle": see Youdan TG (ed), Equity Fiduciaries and Trusts, Law Book Co, 1989, at p 46-47). Professor Finn's passage was quoted with approval by the Full Court of the Federal Court in News Ltd v Australian Rugby Football League Ltd [1996] FCAFC 870; (1996) 64 FCR 410 at 541.

[44] The Design Brief had not been prepared at the time of the DMA and so 2 Fella was obliged to provide the Design Brief within 20 days (see the definition of Design Brief in clause 1.1 and Schedule 5 of the DMA). There was some contention in the evidence that this was a breach of contract, but the allegation was not pleaded or fully argued and is unnecessary to further consider.

[45] This included power to enter into contracts in SHV's name.

[46] Schedule 6 was not populated but nothing seems to turn on this.

[47] See, in particular clauses 4.2 and 11.4 of the DMA (summarised at subparagraphs [30] (l) and (m) above).

[48] [1999] NSWSC 832 at [58].

[50] [1999] NSWSC 832 at [60].

[51] See, for example, the plaintiff's closing submissions at [28].

[52] This is SHV's (accurate) description of Mr Nyssen in the plaintiff's closing submissions (at [1]).

[55] This sequence of events is canvassed in the plaintiff's closing submissions at [102] and following.

[56] These issues are discussed in more detail below.

[58] Defendants' closing submissions at [67].

[59] GFA = Gross Floor Area, a determining factor for the number of units that can be constructed.

[63] Plaintiff's closing submissions at [125]. As explained below, the JLL valuation is not evidence of the market value of the property. However, it is evidence that a second valuation of the property was received prior to SHV committing to the sale.

[64] Plaintiff's closing submissions at [109].

[66] Plaintiff's closing submissions at [40].

[69] Plaintiff's closing submissions at [22(f)].

[70] Exhibit 55 (PLA012 - Report of Mr Mike Henderson of Acumentis dated 11 December 2023) page 2 at (B)(i)(a).

[71] Plaintiff's submissions at [119].

[72] The report was admitted into evidence only for a limited purpose.

[73] The Wakistas offered $1 million for the property out of the blue, without the property being on the market: TT 4-52 || 37-43. There were no negotiations - simply an offer designed to secure the property.

[74] Exhibit 28 (DEF002 - Joint Experts' Report dated 23 July 2025) at [24].

[76] Plaintiff's closing submissions at [189], [190].

[77] There was a dispute as to whether the building on this property was a pre-1946 building. I accept that the photographic evidence establishes that it was a building that existed as at 1946.

[78] Plaintiff's closing submissions at [190], for example, accuse Mr Henderson of improperly placing too much importance on choosing comparable sales based on the condition of buildings.

[79] [1997] HCA 23; (1997) 188 CLR 449, 466; see also Cornerstone Property & Development Pty Ltd v Suellen Properties Pty Ltd [2014] QSC 6; [2015] 1 Qd R 75 at [52].

[80] Defendants' closing submissions at [198] lists 9 emails and attendances between 25 August 2014 and 17 October 2014 where the subject was raised.

[84] This was the conclusion arrived at in Cornerstone Property & Development Pty Ltd v Suellen Properties Pty Ltd [2014] QSC 6; [2015] 1 Qd R 75 at [54].

[85] Plaintiff's closing submissions at [210].

[87] Plaintiff's closing submissions at [242].

[88] Plaintiff's closing submissions at [243].

[89] It was signed by Mr Nyssen on behalf of PJV which, in turn, signed on behalf of SHV.

[90] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[91] This was the evidence of Ms Leah Cant, Senior Project Manager of Pikos Group, at TT 3-35 || 40-44.

[92] Plaintiff's closing submissions at [257].