3 HANDLEY AJA: This is an appeal by a former client from the dismissal by James J of his cross claim for negligence and breach of fiduciary duty against his former solicitors. The appellant entered into a transaction with his widowed aunt and her son on 25 November 1996. This comprised a deed of transfer, a deed of residency, and transfers of certain real estate (the transaction). The widow divested herself in favour of the appellant and her son of the real estate and other assets she had recently inherited under the will of her late husband following his death on 25 April that year. Under the transaction the appellant and her son assumed liability for the debts of the deceased which were substantial, and agreed to allow the widow to reside rent free in the homestead on one of the properties. The appellant and her son also agreed to pay all outgoings and keep the homestead in good repair. Mr Sheridan, partner in the firm, acted for all three parties in the transaction.
4 On 23 January 2001 the widow commenced proceedings in the Common Law Division (Professional Negligence List) against her former solicitors, the appellant and her son. She sued the solicitors for professional negligence, and the appellant and her son for relief under the Contracts Review Act, for relief from an unconscionable transaction, and she sought rectification of the deed of transfer.
5 An amended statement of claim filed on 11 September 2003 further alleged that the solicitors breached their duty of care by failing to ensure that the deed of residency gave the widow a registrable interest in the homestead and alleged breaches of the contract of retainer which corresponded with the breaches of the tortious duty of care in the original statement of claim.
6 Further amendments to the statement of claim on 27 May 2004, during the trial, introduced a claim that the widow had been induced to enter into the transaction, without the benefit of independent legal advice, by the undue influence of the appellant.
7 The appellant filed a cross claim against the solicitors claiming damages or equitable compensation for breach of their professional or fiduciary duties. This was amended on 16 July 2003 and on 31 May 2004 during the trial.
8 The judge gave judgment on 24 February 2005 dismissing the widow's action against all defendants, and a further judgment on 10 March dismissing the cross claim against the solicitors. He held that the transaction was not unconscionable and the appellant had not exerted undue influence on the widow. The appellant was therefore wholly successful in his defence but the trial lasted 22 days and his order for costs against the widow was substantially worthless.
9 The appellant sought, and in the appeal continues to seek, to recover those costs from his former solicitors as damages or equitable compensation for breach of their professional and fiduciary duties.
10 The judge dismissed the cross claim because he found that the solicitors had not breached their duties to the appellant. Those findings are challenged in the appeal.
11 The judge noted that a number of the widow's claims had not been pressed, or only faintly pressed, in final address. These included many of the particulars of negligence, the claim under the Contracts Review Act, the claim for rectification of the deed of transfer, and her claims in respect of the deed of residency. It is difficult to understand why it would be thought that a claim under the Contracts Review Act was not worth pursuing but claims for undue influence and unconscionable dealing were.
12 The judge found that the widow was not a generally reliable witness, that she had no recollection of many of the relevant events, and some of her evidence was self-contradictory. A great deal of her evidence was rejected.
13 The judge found that she understood that she would be divesting herself of her husband's estate, she knew she had a choice, she knew she was transferring the properties, including the homestead, she was aware of the debts of the estate, she knew that an owner could mortgage properties to a bank and in the event of default the bank could sell the land. The widow also realised that she could not continue her husband's grazing business or make any contribution to the running of the business of Kempsey Kar Kare which her husband had been conducting in partnership with the appellant. She also realised that she could not make any contributions to the quarrying business in which her son was interested. However she wanted the properties kept in the family and knew that it was necessary to find someone who would stand in the place of her husband in both businesses.
14 Mr Sheridan sent copies of the draft documents to the parties care of the appellant under cover of his letter of 19 November (blue 3/422, 542). An appointment to sign them was made on 21 November for 25th.
15 All three parties were present for the appointment and Mr Sheridan explained the nature and effect of the documents to them. He then read to them the transfer deed and the statutory declarations (2/423). He asked the widow whether she was happy to proceed. She said she was. He then invited her to ask any questions about the documents or anything else and said "Do you want to talk to anybody else before you sign the documents or to seek any other advice". She said that she wanted to proceed then and there (2/423-4).
16 The documents, other than the deed of residency, were then signed. Mr Sheridan posted the draft deed of residency to the appellant on 26 November under cover of a letter addressed to all three parties. The letter asked them to sign the deed where indicated and have it returned to the office (2/424, 572).
17 The judge said that Mr Sheridan agreed that he had not read any of the deeds to the clients on 25 November (red 144 para [271]). This seems to have been a slip as Mr Sheridan was not cross-examined on that statement at all (black 5/929DG). The judge accepted the evidence of Mr Sheridan generally, and his evidence about what occurred on 25 November and in these circumstances there was no reason for rejecting his evidence about reading the deed and the statutory declarations to the parties.
18 The judge found that the appellant was not in a relationship of influence over the widow. He had not attended the important conference between the widow and Mr Sheridan on 26 July 1996 or attempted to have it postponed until he could attend. The widow had not been conscious of any pressure from the appellant to refrain from speaking to others, such as her son, her solicitor or her accountant about the transaction. The appellant made no attempt to have the widow retain a solicitor of his choosing. The judge was not satisfied that there was any other alternative course of action open to the widow that would have fulfilled so many of her objectives. This will be important when considering the question of causation.
19 The judge was not satisfied that the widow was in a position of special disadvantage in dealing with the appellant. She had to do something and, as previously mentioned, there was no viable alternative that would have fulfilled so many of her objectives. He was not satisfied that the appellant unconscientiously took advantage of the widow.
20 The judge held that the re-amended cross claim only pleaded claims that were consequential on the widow's success, but he also dismissed the cross claim on its merits. Although there is substance in the pleading objection this court decided to hear the appeal on all issues. Since in my judgment the appeal fails on the merits it is not necessary to review the judge's decision on the pleading question.
21 The parties had reached general agreement on the transaction before the widow and the appellant's wife saw Mr Sheridan on 18 July 1996 to instruct him on behalf of all parties to implement the transaction. The judge found that the retainer was limited to carrying the informal agreement into legal effect. Because of its limited nature there was no conflict of interest between the appellant and the widow.
22 He held that "a mere possibility of conflict between Mr Sheridan's duty to [the appellant] and his duty to [the widow]" did not establish a breach of his fiduciary duty to the appellant.
23 A claim on behalf of the widow that the solicitors committed a breach of duty by failing to secure a registered life estate for her might have established such a conflict. This claim was not pressed in final address and the appellant did not establish that a situation of actual or probable conflict had arisen before the transaction was completed.
24 In an ideal world the widow should have had a registered life estate or lease of the homestead, but the whole property was already subject to a registered mortgage in favour of the Commonwealth Bank for a substantial sum. The appellant's capacity to carry on the business of Kempsey Kar Kare and the grazing business and the son's ability to carry on the quarrying business depended on a continuation of the loan or loans secured by that mortgage. The retention of a life interest in the homestead may well have frustrated the widow's wishes that her husband's properties be kept in the family, and his businesses continued by the appellant and her son. This was not established, but there was no expert evidence that the solicitors committed a breach of duty by failing to secure a registered life estate for the widow.
25 Thus the appellant's case against the solicitors for breach of fiduciary duty was based on nothing more than theoretical possibility of conflict between the duties Mr Sheridan owed the widow and the appellant. It was not established that this potential conflict ever crystallised in an actual or probable conflict. This was due to Mr Sheridan's retainer to carry the agreed transaction into effect, and the narrow range of options open to the widow given her unwillingness or inability to carry on either business, the size of her husband's debts, and her own wishes for the future. As the judge held she did not have the option of doing nothing.
26 The judge said that counsel for the appellant had not identified any advice or information within the scope of the retainer that Mr Sheridan ought to have given to the appellant but did not because of his conflicting duty. Mr Parker SC submitted below, and again in this Court, that the retainer to act for both the appellant and the widow with its potential for conflict was sufficient, without more, to establish a breach of fiduciary duty. In that situation Mr Sheridan, it was said, was bound to obtain the informed consent of both parties to him acting or continuing to act, and in order to do this he had to disclose, as a material fact, the existence of that potential conflict.
27 The judge held that the mere possibility of conflict was not a material fact that Mr Sheridan had to disclose to comply with his fiduciary duty as defined by the Privy Council in Brickenden v London Loan & Savings Co [1934] 3 DLR 465, 469 (Brickenden). No witness, including the appellant, had given evidence that established its materiality.
28 The judge also noted the decision of this court in Beach Petroleum NL v Kennedy [1999] NSWCA 408, 48 NSWLR 1 (para [444]) (Beach Petroleum) that Brickenden was not authority that the court could never consider what would have happened if the fiduciary duty had been performed.
29 The judge was not satisfied that the disclosure by Mr Sheridan contended for would have caused the appellant to act differently. In his view the appellant would have continued to retain Mr Sheridan although the latter was acting for the widow. The claim for breach of fiduciary duty therefore failed.
30 The claim for breach of the solicitors' tortious and contractual duties of care failed for similar reasons. There was no conflict of interest, and the transaction was appropriately documented. The judge was not persuaded that the disclosure contended for would have led to any change in the transaction. He found that the widow would probably have pressed her claims for undue influence and unconscionable dealing even if she had given her informed consent to Mr Sheridan acting for all parties.
31 The issues on appeal relate to the relevance of the mere possibility of a conflict between duties where no actual conflict was established, the materiality or otherwise of that possibility, whether there was any obligation to disclose it, and the question of causation.
32 Mr Parker contended that Mr Sheridan's duty required him to refuse to act for the appellant as well as the widow without explaining that the appellant's rights under the transaction would be strengthened against possible challenge by the widow if he, Mr Sheridan, only acted for the widow. She would then have independent legal advice and it was submitted this would practically guarantee that she would not bring proceedings against the appellant.
Breach of Fiduciary Duty
33 As this Court said in Beach Petroleum at para [188]:
"Even in the case of a solicitor client relationship, long accepted as a status based fiduciary relationship, the duty is not derived from the status. As in all such cases the duty is derived from what the solicitor undertakes, or is deemed to have undertaken, to do in the particular circumstances."
34 Earlier the Privy Council had said in Clark Boyce v Mouat [1994] 1 AC 428, 436-7:
"In determining whether a solicitor has obtained informed consent to acting for parties with conflicting interests it is essential to determine precisely what services are required of him by the parties. In this case [the trial judge] was satisfied that Mrs Mouat was not concerned about the wisdom of the transaction and was
merely [seeking] the service of the solicitor to ensure that the transaction [was] given proper and full effect by way of ascertaining questions of title and ensuring that by appropriate documentation the parties [achieved] what they [had] contracted for.
Their Lordships are accordingly satisfied that Mrs Mouat required of Mr Boyce no more than that he should carry out the necessary conveyancing on her behalf and explain to her the legal implications of the transaction. … When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on solicitors."
35 This passage was adopted by this Court in Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398, 412. In the present case Mr Sheridan was retained to put the agreed transaction into legal effect. The judge's findings of fact established that the widow knew what assets had passed to her under her husband's will, their valuation for probate, and the extent of her husband's debts. She knew that she was divesting herself of those assets, and freeing herself from those liabilities insofar as the appellant and her son could do this. She also knew about the mortgages and the consequences of default. It was not established that she was unaware of any relevant fact relating to the properties, their value, or the debts, let alone that Mr Sheridan was aware of such a fact but failed to disclose it to her. It was not established that she was mistaken about, or did not fully understand, the nature of the transaction and its practical and legal effect.
36 There is no general rule that a solicitor cannot act for different parties in the one transaction. In Farrington v Rowe McBride and Partners [1985] 1 NZLR 83 CA, 47 Richardson J said, in a passage cited by the Privy Council in Clark Boyce (above) at 436, by the High Court in Maguire v Makaronis [1997] HCA 23, 188 CLR 449, 465 and by this Court in Beach Petroleum (above) para [207]:
"But the acceptance of multiple engagements is not necessarily fatal. There may be an identity of interest or the separate clients may have unrelated interests. In some circumstances they may even be able and prepared to look after their own interests. Such cases seem straight forward so long as it is apparent that there is no actual conflict between duties owed in each relationship. However the difficulty lies in determining in particular cases that there is no such conflict and the courts have often warned of the risks involved where the solicitor acts for both parties in a conveyancing transaction."
37 Mr Sheridan, as a fiduciary, owed separate duties of undivided loyalty to the widow and the appellant. This Court said in Beach (above) at paras [196], [201]:
"This case involves an alleged conflict of duty and duty, rather than a conflict of interest and duty. However in both categories what is involved is a breach of the same over-riding duty of undivided loyalty …The conflict of duty and duty rule and the conflict of duty and interest rule may impact differently but both are manifestations of the over-riding duty of undivided loyalty."
38 The test for the existence of conflicting duties to two or more principals is that stated by this Court in Beach Petroleum (above) at paras [425]-[427]:
"In a situation of alleged conflict of duty and duty, there must be 'a real sensible possibility of conflict'. It is not enough to identify 'some conceivable possibility' which may result in a conflict … [Counsel] submitted that in neither case - a retainer for restructuring or for the currency swap - did a 'real sensible possibility of conflict' arise in the circumstances of this case. We accept this submission in the case of the currency swap. The limited retainer for completion and delivery of documents to implement the transaction which had already been agreed, was restricted to clerical acts that gave rise to no conflict of the relevant character."
39 The authority cited by the court for its statement of principle included Boardman v Phipps [1967] 2 AC 46 at 124 where Lord Upjohn said:
"The phrase 'possibly may conflict' requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict."
40 Earlier, as Upjohn LJ, he said in Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606, 637-8:
"… a broad rule like this must be applied with common sense and with an appreciation of the sort of circumstances in which over the last 200 years and more it has been applied and thrived. It must be applied realistically to a state of affairs which discloses a real conflict of duty and interest and not to some theoretical or rhetorical conflict."
41 This Court noted in Beach Petroleum that Lord Upjohn's statement in the later case had been cited with approval by the Privy Council in Queensland Mines Ltd v Hudson (1978) 52 ALJR 399, 400, and in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64, 156 CLR 41 at para [85] per Mason J, with whom Deane J agreed. Theirs were dissenting judgments on the fiduciary issue but they are persuasive on the present point. Gibbs CJ and Dawson J who formed part of the majority also quoted extensively from the speech of Lord Upjohn in Phipps v Boardman (above).
42 The judge's findings establish that there was no real sensible possibility of conflict in this case. There was no evidence, expert or otherwise, of any occasion when Mr Sheridan had to choose between two or more ways in which the transaction could be framed or implemented where the interests of the appellant and those of the widow might have diverged. There was also no evidence that any fact relating to the merits or wisdom of the transaction came to the knowledge of Mr Sheridan before it was implemented that should have been disclosed to the appellant or the widow or both and was not.
43 Mr Parker submitted that Mr Sheridan should have disclosed to the appellant, as a relevant material fact, the benefit he would obtain by instructing another solicitor. This was that the transaction would be less open to challenge, and less likely to be challenged, because the widow would have had independent legal advice.
44 The Court was not referred to any authority that extends a solicitor's fiduciary duty of disclosure to a fact of this nature. The earlier cases involved material facts relating to the merits or wisdom of the transaction. The facts were such that knowledge of them was likely to cause the principal to reconsider the proposed transaction and either withdraw from it, or seek to renegotiate its terms.
45 The material fact relied on here does not relate to the merits or wisdom of the transaction itself. Knowledge of that fact would not have caused the appellant to reconsider his approach to the transaction by withdrawing from it, or attempting to renegotiate its terms. In my judgment the fact was not relevantly material and Mr Sheridan's fiduciary duty to the appellant did not require him to disclose it.
46 This conclusion is supported by the reasoning of Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1 CA, 19. Having said that breach of "the double employment rule", in acting for two principals with potentially conflicting interests, is automatically a breach of fiduciary duty he continued:
"But this is not something of which the society can complain. It knew that the defendant was acting for the purchasers when it instructed him. …The potential conflict was of the society's own making … The society knew all the facts relevant to its choice of solicitor. Its decision to forward the cheque for the mortgage advance to the defendant and to instruct him to proceed was based on false information, but its earlier decision to employ the defendant despite the potentially conflicting interest of his other clients was a fully informed decision.
That, of course, is not the end of the matter. Even if a fiduciary is properly acting for two principals with potentially conflicting interests he must act in good faith in the interests of each and must not act with the intention of furthering the interests of one principal to the prejudice of those of the other … I shall call this 'the duty of good faith'. But it goes further than this. He must not allow the performance of his obligations to one principal to be influenced by his relationship with the other. He must serve each as faithfully and loyally as if he were his only principal.
Conduct which is in breach of this duty need not be dishonest but it must be intentional. An unconscious omission which happens to benefit one principal at the expense of the other does not constitute a breach of fiduciary duty, though it may constitute a breach of the duty of skill and care. This is because the principle which is in play is that the fiduciary must not be inhibited by the existence of his other employment from serving the interests of his principal as faithfully and effectively as if he were the only employer. I shall call this 'the no inhibition principle' … Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of interest so that he cannot fulfil his obligation to one principal without failing in his obligation to the other."
47 The appellant also knew that Mr Sheridan was acting for the widow when he instructed him. The reasoning of Millett LJ suggests that it is only the existence of a duty to another principal that must be disclosed unless there is already something more than a theoretical possibility of a conflict.
48 There was no finding and no evidence in the present case that Mr Sheridan did anything "with the intention of furthering the interests of [one client] to the prejudice of … the other", or that he intentionally allowed the performance of his obligations to one to be influenced by his relationship with the other. There was also no evidence that an actual conflict of duty ever arose which prevented him fulfilling his duty to the appellant because of a conflicting duty to the widow.
49 For these reasons the appellant failed to establish a breach of fiduciary duty by Mr Sheridan. In any event there is still the question of causation. The judge found that the disclosure contended for would not have led the appellant to instruct another solicitor. Causation of this kind, dealing with a past hypothetical event, has to be decided in retrospect, but must be decided prospectively as at the past date, without the distortion of hindsight.
50 Between July and November 1996 the prospect of the widow bringing proceedings to challenge the transaction would have seemed fanciful and utterly theoretical to the appellant. The transaction has been found to be unimpeachable. The appellant was guilty of no legal or equitable wrong in the negotiations and dealings leading up to the execution of the conveyancing documents on 25 November. The transaction proceeded at a leisurely pace and more than 4 months elapsed between the widow's instructions to proceed and the execution of the documents. In these circumstances there was no reason for the appellant to foresee or be concerned about the risk of a legal challenge by the widow. This finding by the judge cannot be disturbed.
51 The judge also found that the appellant's retainer of a separate solicitor would not have prevented the widow bringing the proceedings. Her claims were not based on a correct or substantially correct version of the facts. In my view her instructions to commence proceedings based on a substantially incorrect history, and her persistence in those proceedings is the real cause of the appellant's loss. The judge having seen and assessed the widow in the witness box and sifted the facts was entitled to find, as a past hypothetical fact, that she would still have brought the proceedings against the appellant even if he had obtained separate representation.
52 The appellant's supposition is that Mr Sheridan should have advised the appellant to obtain separate representation, and if he had received that advice and acted on it, the widow would not have sued. The appellant's decision to obtain separate representation would have left Mr Sheridan acting for the widow and possibly for her son. What advice would Mr Sheridan then have given the widow? Mr Sheridan would probably have acted just as he did on 25 November, but that did not prevent her challenging the transaction.
53 The receipt of independent legal advice will enable a defendant charged with having procured a beneficial transaction by undue influence or an unconscionable bargain to resist the plaintiff's attack on that transaction: Demerara Bauxite Co Ltd v Hubbard [1923] AC 673, 782-3; Inche Noriah v Shaik Allie Bin Omar [1929] AC 127, 135-6. As Lord Hailsham LC said in the latter case that advice must not only be independent "it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give".
54 If the widow's affidavit of 23 October 2002, which presumably reflected her instructions to her solicitors, had been substantially correct she would have established that Mr Sheridan did not have knowledge of all relevant circumstances on 25 November. For example he was not aware that the widow was incapacitated by emotional distress (red 161 para [346]), that she was dependent on the appellant who was in a position of ascendency over her, and that the appellant had misrepresented or failed to explain the financial position of the estate to her (further amended statement of claim red 41). The widow did not remember that Mr Sheridan had explained the transaction and the documents to her, that she had given instructions for the transaction to be implemented, and that at the time she understood the transaction and the general financial position of the estate. Her instructions, if substantially true, would have established that Mr Sheridan did not give her competent advice based on a knowledge of all relevant circumstances. On those instructions it is hardly surprising that proceedings were brought to have the transaction set aside. Her case failed, not because her instructions did not support valid equitable claims, but because they were not substantially true.
55 In these circumstances the judge's finding that the widow would have still brought proceedings even if the appellant had found another solicitor cannot be disturbed. In Brickenden [1934] 3 DLR 465, 469 Lord Thankerton, speaking for the Privy Council, said that if a fiduciary fails to disclose material facts in connection with a transaction he:
"cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction … Once the court has determined that the non-disclosed facts were material, speculation as to what course the constituent, on disclosure, would have taken is not relevant."
56 In Beach Petroleum this Court said (above at paras [444], [447],[449]):
" Brickenden is not, in our opinion, authority for the general proposition that, in no case involving breach of fiduciary duty, may the court consider what would have happened if the duty had been performed … [The trial judge] concluded that the loss would have occurred irrespective of anything [the solicitors] did. … [This] is a finding that loss would have occurred whether or not any such duty as alleged had been performed … A fiduciary, including a solicitor, is not an insurer."
57 In my judgment the claim for breach of fiduciary duty also fails on causation grounds.
58 The claim that Mr Sheridan's duty of care required him to advise the appellant to be separately represented must also fail on the same causation grounds. The appellant did not establish that he would have acted on that advice, the widow would still have brought the proceedings even if he had, and her incorrect instructions to her solicitors and her proceedings based on those instructions were a new intervening cause that broke any chain of causation from any breach of duty by Mr Sheridan. In these circumstances there is no need to express any concluded view on the questions of duty and breach. My provisional view is that the appellant was asserting a higher standard of care, based on standards of wisdom and caution greater than that required of the average prudent solicitor, and that the analysis relied on was infected with the wisdom of hindsight: Compare Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Law Reports 172, 185.
59 In my judgment the appeal fails and should be dismissed with costs.