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[2026] NSWCA 54
respondent. Appeal dismissed. The appellant was ordered to pay the respondents’ costs, including the costs, if any, of the notice of motion filed on 5 March 2026: [100].
The Court of Appeal dismissed Tekin’s attempt to obtain substantially more damages from his former solicitors. Although the solicitors accepted liability for losses connected with the defective notice and their conflict of interest, Tekin still had to prove that the alleged failures to advise caused the larger loss he claimed. The Court accepted findings that he knew he could sell the land, but wanted at least $10 million and preferred to refinance and pursue possible rezoning rather than sell at a lower price. The evidence did not show a buyer prepared to pay his minimum price or establish a valuable lost opportunity. The same need to prove causation applied to the fiduciary-duty claim.
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2,357 words · generated 05/10/2026
In Tekin v Stratford [2026] NSWCA 54, Celal Tekin appealed from a Supreme Court judgment awarding him $300,000 against his former solicitors. He sought substantially more, including damages for the difference between the price at which a secured creditor eventually sold his land and the higher price he said he would have obtained, or the opportunity to obtain it, if his solicitors had acted differently.
The relevant land comprised four adjoining residential properties in Castle Hill, which Tekin had acquired between 1992 and 2003. He obtained development consent for 22 townhouses in 2011, but financial pressure later led him to decide to sell. In October 2014 he agreed to sell to Upside Property Group Limited for $7.8 million. A side deed provided for a possible division of additional proceeds if the land were resold before completion for a higher amount. The agreement also required a $300,000 part-payment of the deposit, which Tekin used to pay a creditor and remove a caveat.
Upside did not complete on 1 December 2014. On 4 December, Tekin’s solicitor Stratford issued a notice to complete giving Upside 13 days. It was common ground that the notice was defective because it allowed only 13 days. On Tekin’s instructions, Stratford later issued a termination notice. Upside challenged that notice and, on 19 March 2015, accepted Tekin’s repudiation of the contract. Upside subsequently sued for return of the deposit and damages, and lodged a caveat over the land.
The solicitors accepted liability for $300,000 because their defective notice caused Tekin to lose the deposit. They also accepted liability for a further $127,000 arising from breach of fiduciary duty. The dispute on appeal concerned whether the alleged failure to advise Tekin that he could sell the land caused further loss. The land was ultimately sold by secured creditor Balmain NB for $6.85 million in 2017, after Tekin defaulted on refinancing.
The primary judge found that Tekin was not prepared to sell below $10 million, and that he pursued refinancing and possible rezoning rather than an immediate sale at a lower price. The Court of Appeal upheld those findings. It dismissed the appeal and ordered Tekin to pay the respondents’ costs, including any costs of his notice of motion filed on 5 March 2026: [100].
The judgment turns on causation and the evidence about Tekin’s state of mind and commercial intentions. It was not enough to identify a breach. To obtain the additional damages sought, Tekin had to establish that the breach caused the loss. The Court noted that he bore the onus of proving the matters in his claim, including causation: [4]. The governing statutory provisions identified in the judgment were ss 5D and 5E of the Civil Liability Act 2002 (NSW).
First, the Court rejected the contention that Tekin remained unaware that he could sell after the Upside contract ended. The primary judge had inferred that he understood from 13 March 2015 that he was free to sell. The Court found no basis to disturb that conclusion. Upside’s position, as Tekin understood it, was a claim for the deposit and damages, rather than a demand for an order requiring completion. By 19 March, the contract was no longer on foot: [58]. The Court also relied on objective conduct, including Tekin’s engagement of new solicitors and selling agents before the Upside litigation was resolved. That conduct was inconsistent with his assertion that he believed a sale was legally impossible until the litigation concluded: [59], [63]-[64].
Second, the Court accepted the findings that Tekin would not have sold at a price below $10 million. The evidence showed that he was interested in prospects for higher-value sales, refinancing and rezoning. In February 2015, he rejected a suggested $9.75 million offer and said that he intended to refinance because he thought the land’s value could double within six to 12 months: [20]. The primary judge found that the $10 million threshold continued at least until July 2015: [19]. The Court of Appeal considered the alleged offers in context. They were largely supported only by Tekin’s evidence, lacked ordinary transaction documents, and were not capable of acceptance: [82]-[86].
Third, the Court rejected the alternative case that Tekin had lost a valuable opportunity to sell. Drawing on the two-stage approach described in Mal Owen, the Court explained that the claimant first has to prove that, but for the breach, he would probably have received an opportunity of some value. Only if that threshold is met is the value of the opportunity then assessed by reference to the probabilities and possibilities of success: [77]-[81]. The Court distinguished La Trobe, where evidence showed that demand for commercial loans exceeded the lender’s available funds. That evidence supported a finding that the lender had lost an opportunity to make another loan. Here, the evidence did not show demand for Tekin’s land at his minimum price of $10 million: [79]-[81].
Finally, the Court held that the causation problem applied to the fiduciary-duty claim as well. Where the principal allegation is a failure to advise, the claimant must still prove, on a common-sense view, that the breach caused the loss. As the Court quoted from Youyang, “There is no equitable by-pass of the need to establish causation”: [88]. The appeal therefore failed even though the respondents’ liability for the accepted amounts was not in dispute.
The judgment presents its legal reasoning as an application of existing statutory provisions and authorities, rather than as a change to the law. It identifies s 5E of the Civil Liability Act as placing the onus of proof on the claimant, including for causation: [4]. It discusses s 5D as setting out general principles of causation and refers to s 5D(3), which addresses hypothetical evidence about what a person would have done if the negligence had not occurred: [84]-[85].
For loss-of-opportunity claims, the Court relied on the approach set out in Mal Owen. The first question is whether the claimant has established, on the balance of probabilities, that an opportunity of some value would probably have arisen but for the breach. The second, reached only if the first is satisfied, concerns the value of that opportunity, assessed by reference to the relevant probabilities and possibilities: [77]-[81]. The judgment applies that framework to a proposed sale of land, rather than to the lending opportunity considered in La Trobe.
The case also reinforces that factual causation must be proved in a fiduciary-duty claim where the complaint is a failure to advise. The Court relied on Gerrard Toltz and Youyang for the proposition that equitable principles do not remove the need to establish a causal link between breach and loss: [88].
On appellate review, the Court referred to the trial judge’s advantages in hearing the evidence as a whole, drawing on Earthline and Fox v Percy: [60]-[61]. It also discussed Chappel v Hart and Takla v Nasr in relation to evidence about a hypothetical state of mind. The Court’s reasoning emphasises objective factors, especially a claimant’s conduct around the relevant time, as evidence of what the claimant would have done: [61]-[64].
Accordingly, the “after” position in this judgment is an application of those existing rules to the evidence. The Court did not announce a new test. Its contribution in this case is to show how the causation and lost-opportunity principles operated where the claimant had a specific minimum sale price but could not establish a market opportunity at that price.
At [62], Adamson JA observed that Tekin might genuinely have come to believe, by the time he gave evidence, that he would have sold the land if he had known he could. The primary judge had found that he had “genuinely” come to believe he would have avoided the consequences he later suffered, even though the objective facts pointed the other way. In plain English, the Court treated sincerity and accuracy as distinct: a person can honestly hold a later belief about what they would have done, but the court may test that belief against what they did at the time.
At [63], the Court said the primary judge could rely on the surrounding circumstances and Tekin’s conduct, including his retaining solicitors and selling agents before the Upside proceedings ended. In plain English, those steps made it harder to accept that he thought he could not sell until the case was over.
At [81], the Court explained why La Trobe did not assist Tekin. There, evidence of excess demand for loans supported a finding that another lending opportunity existed. Here, there was no comparable evidence of demand for land at $10 million. In plain English, evidence that an asset might be valuable is not necessarily evidence that a buyer would have purchased it at the claimant’s required price.
At [87], the Court said there was “no credible evidence” that Tekin was willing to meet the market below $10 million. It also found that he intended to retain the land while pursuing the potential benefit of rezoning. In plain English, the Court did not accept that the alleged failure to advise changed his decision to hold the land.
At [88], the Court stated: “There is no equitable by-pass of the need to establish causation.” In plain English, describing a claim as one for breach of fiduciary duty does not itself establish that the breach caused the loss. The causal connection must still be proved.
At [92], the Court declined to decide the construction or application of the Professional Standards Scheme cap because the question was hypothetical in light of the result. In plain English, the Court left that issue for a case in which it was necessary to decide it.
The reasoning is most relevant to professional-negligence or fiduciary-duty claims where the alleged breach is a failure to give advice and the claimed loss depends on what the client would have done if properly advised. The judgment shows the importance of evidence about contemporaneous plans and conduct, rather than relying only on later assertions about a hypothetical decision: [61]-[64], [84]-[87].
It is also relevant where a claimant says that negligent advice caused the loss of a commercial opportunity, rather than a completed transaction. The claimant must establish that the opportunity had some real value and would probably have arisen but for the breach. Where the claimant would act only at a particular price, the evidence must support the existence of an opportunity at that price or otherwise demonstrate some value to the lost opportunity: [77]-[81].
The decision may be useful where a claimant has several competing commercial intentions, such as selling, refinancing, developing or waiting for a planning change. The Court assessed the whole course of conduct, including Tekin’s refinancing, plans for rezoning and communications about price, rather than treating an alleged willingness to sell as an isolated fact: [19]-[22], [50]-[51], [81]-[87].
It also illustrates the limits of relying on expressions of interest or informal offers. The Court noted that the alleged offers were preliminary, were not capable of acceptance, and were not supported by the documentation expected for transactions of that scale: [19], [82]-[86]. The judgment does not establish that informal offers can never prove value. It shows that the evidence in this case was insufficient to establish an opportunity at the required price.
The judgment is dated 16 April 2026 and the supplied text contains no later judicial decisions applying or distinguishing Tekin v Stratford. Its treatment by later courts therefore cannot be determined from the judgment provided.
The authorities discussed within this judgment are earlier decisions, not later treatment of Tekin. The Court applied or discussed Chappel v Hart, Earthline, Fox v Percy, Takla v Nasr, Mal Owen, Youyang, Gerrard Toltz and other authorities in reaching its decision. It distinguished La Trobe because that case had evidence of demand for alternative lending opportunities, whereas the evidence here did not establish demand for the land at Tekin’s minimum price: [74]-[81].
The separate Upside litigation is part of the factual history. The Supreme Court dismissed Upside’s claim in 2016, and the Court of Appeal upheld that result in 2017: [38]. Those cases pre-date the present judgment and concern the purchaser’s claim against Tekin, not later treatment of the negligence and loss-of-opportunity reasoning in this appeal.
The judgment expressly leaves the Professional Standards Scheme issue undecided. Adamson JA said that interpretation of the Scheme should await an appeal where the question was necessary, because the judgment below fell within the cap and the appeal failed for other reasons: [92]. The supplied reasons do not determine how the Scheme applies in a case where the cap is outcome-determinative.
The Court also did not need to decide ground 4 on the hypothetical basis that Tekin did not know he could sell. It held that he did know, so it was unnecessary to determine whether the solicitor had an obligation, when discussing the caveats in May 2015, to explain that a sale could occur with repayment of the deposit from the proceeds: [67]-[70]. That duty question remains unresolved by this judgment.
The decision does not determine what evidence would be sufficient in a different case to establish demand for land at a claimant’s minimum price. It explains why the evidence here was inadequate, including the absence of acceptable offers and the uncertainty of rezoning: [81]-[86]. A case with documented offers, a binding transaction, or other persuasive evidence of market demand could present different facts, but this judgment does not decide how such evidence would affect the result.
The Court also did not make a finding about the land’s market value at every point in the relevant period. It upheld the conclusion that it was unnecessary to do so because the causation and lost-opportunity claims failed on the evidence about Tekin’s willingness to sell and the absence of an established opportunity: [86]-[87].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tekin v Stratford [2026] NSWCA 54
Hearing dates: 20 March 2026
Decision date: 16 April 2026
Before: Mitchelmore JA at [1]
Adamson JA at [2]
Stern JA at [101]
Decision: (1) Dismiss the appeal.
(2) Order the appellant to pay the respondents’ costs, including the costs, if any, of the notice of motion filed by the appellant on 5 March 2026.
Catchwords: NEGLIGENCE — professional negligence — where solicitor failed to draft notice to complete with reasonable care — client subsequently repudiated the contract — purchaser sued client for return of the deposit and damages — deposit repaid but no damages awarded as causation not established
BREACH OF FIDUCIARY DUTY — appeal — failure to advise — where solicitor found liable for breach of duty to client — failure to establish causation of loss claimed
REMEDIES — damages — loss of opportunity — assessment of damages where alleged loss of chance — need to prove that alleged lost chance had some value
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E
Evidence Act 1995 (NSW), s 76
Professional Standards Act 1994 (NSW)
Cases Cited: Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232
La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2010] FCA 250
La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; [2011] FCAFC 4
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Takla v Nasr [2013] NSWCA 435
Tekin v Stratford & Ors [2025] NSWSC 541
Upside Property Group Limited v Tekin [2016] NSWSC 1260
Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336
Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; [2003] HCA 15
Category: Principal judgment
Parties: Celal Tekin (Appellant)
Phillip Norman Stratford (First Respondent)
Denis Gordon Low (Second Respondent)
Kelvin Reginald Low (Third Respondent)
Gary Patrick Doherty (Fourth Respondent)
Patrick Anthony Doherty (Fifth Respondent)
Representation: Counsel:
D M Bampton / E Olivier (Appellant)
D Priestley SC (Respondents)
Solicitors:
Monardo Legal (Appellant)
Gilchrist Connell (Respondents)
File Number(s): 2025/240234
[This headnote is not to be read as part of the judgment]
The appellant appealed against a judgment against the respondents, his former solicitors, on the basis that his damages ought to have been significantly greater to include the difference in the amount for which land which he owned was sold by a secured creditor and the higher amount for which he claimed he would have sold it but for the respondents’ negligence and breach of fiduciary duty.
In the Court below, the respondents were found liable to the appellant in negligence and for breach of fiduciary duty for drafting and sending a defective termination notice on a contract for sale of the appellant’s land and for then continuing to act for the appellant in litigation brought by the putative purchaser (Upside). The appellant argued on appeal that, first, the primary judge ought to have found that the respondents had a duty to advise him following the termination of the contract with Upside (the Upside contract) that he was free to sell the land; and, second, the primary judge erred in finding that, in any event, the appellant would not have sold the land in the relevant period and therefore suffered no loss.
The Court (Adamson JA, Mitchelmore and Stern JJA agreeing) dismissing the appeal:
(1) The primary judge was correct to find that the appellant knew, at all relevant times, that he was at liberty to sell the land: [58], [62]-[69].
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Takla v Nasr [2013] NSWCA 435 applied.
(2) There was no credible evidence that the appellant was prepared to sell the land in the relevant period. The evidence indicated that the appellant wanted to retain the land to capitalise on the potential for re-zoning. There was no reason to disturb the primary judge’s findings of fact: [87]-[88].
(3) In respect of his claim in negligence and for breach of fiduciary duty, the appellant bore the onus, which he had not discharged, of proving that his losses were, on a common sense view of causation, caused by the respondents’ failure to advise: [88]-[89].
Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; [2003] HCA 15 cited.
(4) The evidence was insufficient to establish that the appellant’s land was ever worth more than $10 million, which was the threshold below which he was not prepared to sell it. Accordingly, the primary judge was correct to find that the appellant had neither established that he would have sold the land or that he had lost a valuable opportunity to sell the land: [74]-[87].
La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; [2011] FCAFC 4 distinguished.
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 applied.
MITCHELMORE JA: I agree with Adamson JA.
ADAMSON JA: The appellant, Celal Tekin, appeals against the judgment in the sum of $300,000 ordered on 29 May 2025 by Faulkner J (the primary judge) in his favour against the respondents, his former solicitors (the firm): Tekin v Stratford & Ors [2025] NSWSC 541. Mr Tekin seeks that the judgment be set aside and that this Court order judgment for a substantially greater sum to reflect his alleged damages.
In the Common Law Division of the Supreme Court (the Court below), Mr Tekin claimed damages against the firm for alleged negligence and breach of fiduciary duty. In substance, his case was that:
the firm breached the duties which it owed to him by issuing to Upside Property Group Limited (Upside) a defective notice to complete a contract pursuant to which Upside had agreed to purchase land (as defined below) from Mr Tekin (the Upside contract);
having advised Mr Tekin in March 2015 that he could not legally sell the land which he had purchased for development until the Upside contract had been “dealt with”, the firm breached its duty of care by failing to advise him, when Upside terminated the contract on 19 March 2015, that he was legally free to sell the land;
Mr Tekin was not aware that he was legally free to sell the land from 19 March 2015 until 5 July 2016 when the firm advised him that he was free to sell the land;
the firm breached the duties which it owed him by failing to disclose that they were responsible for the defective notice and continuing to act for him in proceedings brought against him by Upside for breach of the Upside contract (the Upside proceedings); and
Mr Tekin suffered loss, for which the firm was liable, because, during the period from 19 March 2015 until 5 July 2016 he either would have sold the land, at a higher price than the $6.85 million for which it was ultimately sold by one of Mr Tekin’s secured creditors; or, in the alternative, that he lost the opportunity of doing so.
As the plaintiff in the Court below, Mr Tekin bore the onus of proving each of these matters, including causation: s 5E of the Civil Liability Act 2002 (NSW).
In the Court below, the firm acknowledged that continuing to act on behalf of Mr Tekin after the defective notice to complete had been served amounted to a breach of fiduciary duty. Further, it acknowledged that it was liable for $300,000 (which it paid) as its negligence in drafting and sending the defective termination notice had caused Mr Tekin to lose the deposit of $300,000 which Upside had paid to him. It was ultimately not in dispute that the firm was also liable to him for $127,000 as a result of its breach of fiduciary duty.
The following narrative is largely derived from the primary judge’s reasons, as indicated by the “J” references. References will also be made, where necessary to the evidence.
Mr Tekin migrated to Australia from Turkey in 1982 (J[10]). From about 1987 he bought and sold property in Sydney (J[11]). In about 1988, Mr Tekin retained Phillip Stratford, the first respondent, to act on his behalf in his property and business transactions. Mr Stratford was a partner at the firm, Low Doherty & Stratford. He specialised in property transactions and did not litigate (J[14]). Mr Tekin trusted Mr Stratford who, by 2014 had been advising him for over 25 years (J[17]). The primary judge found that Mr Tekin was “an astute operator within his own areas of business activity who made his own commercial decisions” and that “Mr Stratford was his trusted solicitor and no more” (J[17]). His Honour was not satisfied that Mr Tekin relied on Mr Stratford for commercial advice (J[17]).
Between 1992 and 2003, Mr Tekin purchased four adjoining residential properties in Castle Hill (the land), which he partly financed from loans advanced by HSBC and La Trobe (J[18]). In September 2011, Mr Tekin obtained development consent to build 22 townhouses on the land (J[21]). He planned to construct the first five townhouses and sell them with a view to funding the balance of the development with the proceeds of sale (J[22]). To that end, he entered into a building contract in January 2012 with ADN Investments Pty Ltd (ADN) for demolition and excavation works on the land (J[22]).
When Mr Tekin obtained a loan offer from the Commonwealth Bank for $7.33 million on 16 February 2012, he decided to develop all the townhouses on the land in a single stage (J[23]). He arranged for ADN to demolish the residences on the land and perform excavation works for the whole of the development (J[23]). However, Mr Tekin was unable to fulfil a condition precedent for the Commonwealth Bank loan. By April 2012, it became clear that the loan could not proceed. This put Mr Tekin under financial pressure as ADN threatened to commence bankruptcy proceedings on the basis of a judgment against Mr Tekin for unpaid contract fees (J[25]). Mr Tekin also had other debts (J[25]).
Mr Tekin sought to proceed with the development in collaboration with another developer, WRV Development Pty Ltd (WRV), which was controlled by Denis Harsany. WRV advanced $300,000 to Mr Tekin, which he used to pay creditors other than ADN. However, the collaboration came to nothing and WRV lodged a caveat to secure repayment of the $300,000 advance (J[27]).
By mid-2014, Mr Tekin’s debts to HSBC and La Trobe amounted to about $2 million. He also owed $80,000 in unpaid land tax. His other creditors included ADN and WRV (J[36]). Since demolishing the residences on the land, he had no income to service, much less repay these debts. In these circumstances, Mr Tekin decided to sell the land and instructed Mr Stratford to act on his behalf.
Please see the altered counter offer.. after talking to couple of more people i am more convinced that i could do much much better than 7.5, had i [had] a little more time to play with. Unfortunately it[’]s not the case. I am pretty sure that in the next 6 to 9 months you will achieve a figure in the mid 10’s mil. Good luck to you anyway. Its better you take it than others.
When cross-examined about this email Mr Tekin accepted that, at that time, he thought that he could sell the land for “much more” than $7.5 million over the next six to nine months and that he thought that he could sell it for as much as $15 million. He confirmed that he understood that he was going to get a share of the profit if the purchaser could sell the land to someone else before settlement.
Mr Tekin and Mr Harsany’s company, Upside, exchanged the Upside contracts on 21 October 2014. The terms of the contract specified a completion date of 1 December 2014; a deposit of $780,000; and a price of $7.8 million (J[40]). A side deed was entered into which entitled either party to sell the land before completion for a higher sum, in which event the difference between the sale price and $7.8 million would be divided between Mr Tekin and Upside, with the potential benefit for Mr Tekin capped at $1 million (J[40]-[41]). Special condition 11 provided for the deposit to be paid in instalments (J[43]). The effect of this special condition, when read with cl 9 of the contract, was that Upside was obliged to pay $300,000 of the deposit which was to be released to Mr Tekin immediately with the balance of the deposit ($480,000) to be paid on completion unless the contract was terminated prior to completion (J[43]-[45]).
On 21 October 2014, Upside paid the $300,000 deposit to Mr Tekin, who used it to pay ADN, with the consequence that the caveat over the land was removed and the bankruptcy notice was withdrawn, thereby relieving Mr Tekin’s most immediate financial pressure (J[49]).
Upside did not complete the contract on the date for completion of 1 December 2014 (J[58]). By 3 December 2014, if not before, Mr Tekin was “alive to the possibility” that the land could be sold for more than $7.8 million (J[63]). It was in this context that he instructed Mr Stratford to issue a notice to complete, which was issued on 4 December 2014 (J[64]). It was common ground that the notice to complete, which specified a completion date of 18 December 2014, was defective as it specified only 13 days for completion (J[64]). Upside did not complete the contract either before or after this date (J[66]).
Also on 4 December 2014, Mr Stratford and Upside’s solicitor corresponded about a potential sale of the land for $10.93 million (J[65]).
Mr Tekin’s state of mind about selling the land at this time and thereafter was the subject of findings, which are significant for the purposes of the appeal:
69 Mr Tekin’s evidence is that “from about late December” he was no longer confident that Upside would complete the $7.8m purchase or that Mr Harsany would find another purchaser. Mr Tekin started talking to selling agents himself. By 23 December 2014 he had signed an agency agreement with at least one agent and he subsequently received a proposed agency agreement from another agent. I infer from this conduct that by the end of 2014 Mr Tekin still wanted to sell the Land but he no longer considered $7.8m to be an acceptable price, even if he could get a $1m uplift under the Side Deed. Whether because of the previous prospect of a sale for $10.93m or other knowledge gained about the market, re-zoning and/or refinance, Mr Tekin now wanted to sell the Land for more than $10m.
70 Mr Tekin also had a changed attitude about timing. Although he had communicated urgency to Mr Stratford when the Contract was entered into in October 2014, Mr Tekin’s Christmas deadline had clearly ceased to apply. His most immediate financial pressure (ADN) had been addressed. He had been exposed to the possibility of a higher price. Some more time may be required to achieve a higher price. There is no evidence of steps being taken to enforce the $7.8m sale to Upside once the Notice to Complete expired, or even communication with Mr Stratford about such steps. By the end of December 2014 Mr Tekin had become willing to delay the sale.
71 Mr Tekin’s expectation of a price above $10m was fuelled by events in the New Year. He gave evidence of having a number of conversations with prospective purchasers. Someone called Mr Merhi said he would give Mr Tekin a cheque for $10m. People from “Kanebridge” told Mr Tekin that they were interested and would pay $8m up front plus $300,000 for each apartment built on the Land. On 6 February 2015 Mr Tekin sent an email to Mr Stratford and asked him to issue a contract to Kanebridge, which was done. Mr Tekin received an offer from “BV Property Group”. At Mr Tekin’s request, on 9 February 201[5] Mr Stratford’s assistant, Ms Pertzel, emailed a contract to [an identified email address]. A man from “Alpha Fund” offered $8m up front plus 33 apartments upon completion of the development. On 11 February 2015 Mr Tekin gave instructions for a contract to be issued to Alpha Fund. On 24 February 2015 an agent sent Mr Tekin a draft deed which contemplated that Mr Tekin would grant Alpha Fund a ten-day option to purchase the Land for an unspecified price. The draft deed specified an option fee of $10,000. At some stage Alpha Fund changed its offer to an all-cash offer of $17m.
72 The evidence about these “offers” is largely confined to Mr Tekin’s Affidavits. There are one or two emails and a draft option deed, but otherwise there is no documentary evidence of Mr Tekin’s communications with any of these prospective purchasers. The sale of the Land for a composite consideration (e.g., cash and apartments) or the entry into a development joint venture would be a large and complex transaction. In the ordinary course, a transaction of that nature would generate documentation. However Mr Tekin does not even have a heads of agreement for any of these prospects. I accept that the discussions occurred, but I infer from the minimal documentation that the discussions were of a very preliminary nature. There is no evidence of any “offer” which was capable of giving rise to a binding agreement to buy the Land for a high price or by entry into a lucrative joint venture.
73 Nonetheless, it is clear from these discussions that in early 2015 Mr Tekin formed the view that the Land was worth significantly more than he had previously thought. He still wanted to sell but it had to be at the right price. He accepted in cross-examination that in February 2015 he would not have been willing to sell for less than $10m. I find that that was his attitude up until July 2015 at least.
(Emphasis added.)
[MR HARSANY]: Before we keep pushing ahead with the refinance Shing [Mr Harsany’s solicitor] has asked me to make sure you don’t want to go ahead with the offer of 9.75 mil and 42 days? It probably doesn’t suit me but I thought I should check with you.
[MR TEKIN]: No, we’re going to refinance. I’m thinking it will be double in the next six to 12 months.
In cross-examination, Mr Tekin admitted that, by the end of February 2015, he was “starting to think … that [he] might be able to get a lot more money for the [land] if [he] could just get it rezoned” and that he “certainly would not have been content … to have sold [it] for less than $10 million”.
Although Mr Tekin planned to sell the land in about 12 months from February 2015, he left open the possibility that he might find a “strong JV [joint venture] partner” to redevelop it.
Mr Tekin’s evidence was that he believed that, when the notice to complete expired, the contract automatically came to an end. However, he was disabused of any such misapprehension by mid-March 2015 when Mr Stratford told him that he could not issue a new contract for the sale of the property “until we deal with Upside” (J[84]). Mr Tekin understood from this that he was still contractually bound to Upside (J[84]). As at 13 March 2015, Mr Tekin did not want to sell the land to Upside for $7.8 million and wanted to terminate the contract so as to avoid the risk that Upside would complete at that price (J[87]). So much is evident from the following exchange in his cross-examination:
Q. You didn’t want him to settle that contract in the middle of March anyway, did you, the Upside contract for sale?
A. No.
Q. You wanted to move on to bigger and better things?
A. Yes.
Q. You thought you’d make more money through working with new possible partners?
A. Yes.
In accordance with Mr Tekin’s instructions, Mr Stratford sent a termination notice to Upside on 13 March 2015, relying on the failure to comply with the notice to complete. That evening Mr Harsany rang Mr Tekin and told him that the termination notice should not have been sent and that he would claim his deposit back and sue for damages (J[89]).
A few days later, Mr Stratford told Mr Tekin that the firm had made a technical error in the termination notice and that Gary Doherty, a partner who specialised in litigation matters, would act for him in relation to the dispute, as he (Mr Stratford) did not do “court matters” (J[91]).
On 19 March 2015, Upside’s solicitors wrote to Mr Stratford, asserting (correctly) that the termination notice was invalid and accepting, on behalf of Upside, Mr Tekin’s repudiation of the contract. They demanded return of the $300,000 deposit and foreshadowed the commencement of proceedings for damages (J[92]). Upside’s acceptance of Mr Tekin’s repudiation had the effect of bringing the Upside contract to an end.
At about this time, Mr Tekin was seeking to refinance his borrowings. Mr Doherty knew a finance broker called Balmain NB Commercial Mortgages (Balmain NB), to which he referred clients from time to time (J[82]). Mr Tekin, who was aware of Mr Doherty’s efforts on his behalf with Balmain NB, decided to proceed with another financier, Chifley Securities. However, Balmain NB made an offer on 20 March 2015 for a loan of $3.9 million which was, in some respects, superior to that made by Chifley Securities (J[99]-[104]).
Mr Tekin gave evidence that, in April 2015, he received an oral offer to purchase the land for $20 million (J[106]), of which there was no documentary evidence (J[109]). The primary judge found (J[109]):
There is no basis in the evidence to find that Mr Tekin would have achieved a $20m sale in April 2015 had he received different or further advice from Mr Stratford about dealing with Mr Harsany.
On 5 May 2015, Upside commenced the Upside proceedings against Mr Tekin, claiming return of the $300,000 deposit and damages (referable to the difference between $7.8 million and the value of the land), interest and costs (J[110]). The firm acted for Mr Tekin in the litigation without informing him of its position of conflict. It acknowledged that this constituted a breach of the fiduciary duty it owed to him.
On 6 May 2015, Upside lodged a caveat over the land asserting a lien for the $300,000 deposit (J[116]). In mid-May 2015, Mr Doherty told Mr Tekin that he would have to return the deposit of $300,000 to get rid of the caveat as “with the caveat there, we can’t do anything” (J[118]).
Mr Tekin’s evidence was that in mid-2015 he “knew” that the land was worth more than $10 million and thought that it was worth about $15 million. The figure of $15 million accorded with the view he had expressed in his email to Mr Harsany sent on 12 October 2014 (referred to above).
Mr Tekin deposed as to his belief as at late May 2015 as follows (extracted at J[123]):
From about late May 2015, I understood that of the loan proceeds, $125,000.00 would be used for the purposes of re-zoning. I had not wanted to apply for the rezoning of the [land] myself before this. I wanted to sell [the land] as quickly as possible or enter into a joint venture or partnership as referred to in the various offers I received in or about early 2015 above. I had no funds available to pay any rezoning costs myself and no experience with such applications. I thought however that, as I now had these funds available to me, and the Firm had offered to help me, I could follow Mr Doherty’s advice … and obtain a better sale price for the [land] if [the land was] rezoned at the time of the sale. I also thought this was a good option while the Upside dispute was being resolved and (as I believed at the time) I could not sell the [land].
(Emphasis added.)
124 This evidence must be understood in the context of the evidence as a whole as set out above. The statement that Mr Tekin had previously wanted to sell as quickly as possible does not mean that he wanted to sell at any price, at least not since October 2014. Had he still wanted to sell at any price on 13 March 2015 he would not have instructed Mr Stratford to issue the Termination Notice immediately in order to avoid the “risk” that Upside would complete the $7.8m sale. What Mr Tekin wanted to do as quickly as possible was to sell the Land at a price in the order of those referred to at [71] and [106] above or do a joint venture from which he would receive $300,000 per apartment built or 33 apartments in addition to a large up front cash payment.
125 Absent a sale at that sort of high price or such a lucrative joint venture, in May 2015 Mr Tekin did not want to sell the Land as quickly as possible. He wanted to spend some time, professional fees, finance costs and other holding costs in order to progress the re-zoning of the Land so that his price expectations might be met in the future. He was willing to include in the new finance from Balmain NB $125,000 for future re-zoning costs.
(Emphasis in original.)
In July 2015, Mr Tekin repaid the $300,000 deposit to Upside and the caveat was lifted.
Mr Tekin told Mr Doherty that the land could be rezoned to higher density residential zoning. As a consequence, Mr Doherty arranged a meeting with The Hills Shire Council (the Council) on 1 September 2015 to discuss the prospects of re-zoning the land to R4 High Density Residential. Mr Tekin, Mr Doherty and Lisa Wrightson, a town planner, and two other Council town planners attended the meeting. After the meeting, Ms Wrightson told Mr Tekin and Mr Doherty that the land was on the lower end of the density spectrum for the area and that it would be difficult to rezone it. As a result of Ms Wrightson’s comments, Mr Doherty formed the view that the prospects of re-zoning were “slim to none” and told Mr Tekin that an application for re-zoning would be a waste of money.
Mr Doherty obtained a report from Ms Wrightson for the purposes of the Upside proceedings, which was also tendered in the proceedings in the Court below. Ms Wrightson, who was not cross-examined, said that to increase the density permissible on the land, it would be necessary, relevantly, to change the zoning in the Local Environment Plan to R4 High Density Residential. She said that although the State Government supported an increase in density, the Council did not. She concluded:
Unfortunately this makes the future uncertain in terms of whether Council will accept or progress a planning proposal for a change in its LEP [Local Environment Plan] for an increase in density.
142 In November 2015 Mr Tekin received a fee estimate from another firm of solicitors to act for him on the sale of the Land. The evidence does not reveal how Mr Tekin came to obtain the estimate. Mr Tekin says that he engaged the other firm in April 2016. The other firm prepared a new sale contract.
143 On 5 January 2016 Mr Tekin signed an agency agreement for the sale of the Land. The agent’s estimated selling price was recorded as $10–15m. Mr Tekin says in his Affidavit that he engaged the agent on 8 March 2016 although there is some ambiguity about the date. In the agency agreement, the term of the agency was specified to be from 8 March 2016 until 22 April 2016, but Mr Tekin’s signature was dated 5 January 2016. The agent’s signature was dated 5 April 2016. It is possible that Mr Tekin signed the document in January but did not return it to the agent until March or April. In any event, Mr Tekin engaged the agent before the Upside proceedings were resolved.
144 Mr Tekin’s undisputed dealings with new solicitors and selling agents are further objective facts which are inconsistent with him thinking that he could not sell the Land until the Upside proceedings were resolved. Mr Tekin says that in mid-April 2016 he asked the agent to stop advertising the Land for sale because he was concerned that a sale would have a bad effect on the litigation, but he does not explain how he came to engage the agent in the first place, nor the new solicitor who drafted a sales contract.
(Emphasis added.)
On 5 July 2016, the hearing in the Upside proceedings commenced. Mr Doherty told Mr Tekin that he could sell the land now at any price he wanted because they were confident that Upside did not have a case (J[155]). On 12 September 2016, Upside’s claim was dismissed with costs on the basis that Upside had not established that it was ready, willing and able to complete the contract in March 2015: Upside Property Group Limited v Tekin [2016] NSWSC 1260 at [78] (Darke J). Darke J also found at [147] that, in any event, Upside had not established that it had suffered any loss (beyond the $300,000 deposit which had already been repaid). This Court dismissed Upside’s appeal on the basis that Upside had not established that it was in a position to complete the contract for purchase of the land (J[156]): Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336 at [29] and [34] (Meagher JA, McColl and Macfarlan JJA agreeing).
The firm did not charge Mr Tekin for its work on the litigation and bore the cost of all disbursements.
Mr Tekin failed to repay the Balmain NB loan on 17 July 2016. On 28 July 2016, Balmain NB issued a default notice and, in about September 2016, it proceeded to exercise its rights under the security over the land (J[159]). In mid-2017, Balmain NB caused the land to be sold for $6.85 million, of which Mr Tekin received slightly more than $2 million (J[160]).
Mr Tekin’s imperfect memory does not just affect the reliability of his evidence about the couple of conversations which matter in this case, but also his evidence about what his plans were [at] any particular stage and, ultimately, what hypothetically he would have done had the Firm acted with reasonable skill and care. In some respects, Mr Tekin has naturally come genuinely to believe that he would have avoided adverse consequences which he has in fact suffered even though the objective facts demonstrate otherwise. Although it does not generally affect the outcome of the case, I have treated Mr Tekin’s evidence with caution.
(Emphasis added.)
Ms Bampton, who appeared for Mr Tekin with Mr Olivier in this Court, did not challenge the primary judge’s assessment of Mr Tekin’s credit. Rather, she submitted that his Honour’s findings as to what Mr Tekin would have done had he been advised that he was free to sell the land were contrary to the objective facts, undisputed evidence and other findings made by his Honour.
The primary judge accepted the evidence of Mr Stratford (J[6]) and found Mr Doherty to be “on the whole truthful”. He accepted the evidence of Mr Doherty “with a suitable degree of caution” (J[8]).
To establish his case in the Court below, it was necessary for Mr Tekin to prove, on the balance of probabilities, that, from 19 March 2015 until 5 July 2016:
he was not aware that he was legally free to sell the land; and
it was not reasonable for the firm to assume that Mr Tekin was aware that he was legally free to sell the land.
Absent a factual finding to this effect, Mr Tekin could not prove that any breach of duty by the firm in failing to advise him that he was free to sell the land, was causally connected to his alleged loss. Ms Bampton accepted that, if this factual finding were not disturbed by this Court, the appeal must be dismissed.
Q. Did you not feel the need to tell him after 13 March, [when he had told Mr Tekin that he could not sell the land], that he now could sell it?
A. Well, he - if he was aware that the contract with Upside was at an end, you would think he would then know he could sell it.
Q. You understood that Mr Tekin wasn’t a man versed in the niceties of conveyancing law, didn’t you?
A. He’d been involved in a lot of conveyancing over the years, but he wouldn’t know the technicalities of it, no.
Q. You agree that you never said to him “Now you can sell it”?
A. Well I don’t think there was a need to go and tell him he could sell it.
257 Another significant problem with the allegations is that from at least early 2015 Mr Tekin was attempting to address his financial difficulties not by selling the Land but by refinancing it. That approach climaxed on 17 July 2015 when Mr Tekin drew down the refinance from Balmain NB. Whilst Mr Tekin was always open to a sale at a very high price or as part of a lucrative joint venture, given Mr Tekin’s active pursuit of refinance it is implausible that an occasion occurred which required the Firm to advise Mr Tekin that he could instead sell the Land.
258 There was one occasion when the possibility of a sale arose for discussion between Mr Tekin and Mr Stratford, namely on 13 March 2015. There is no dispute that Mr Tekin and Mr Stratford had a conversation in which Mr Stratford advised that Mr Tekin could not sell the Land “while the Upside Contract was still in place”. Mr Tekin then gives the following evidence:
“…I understood that following that conversation, Mr Stratford would be doing something to deal with the Upside Contract to allow me to sell the [land], however I did not know what it was, and he did not explain it to me. He said to me words to the effect of ‘I will take care of it’. I now understand that the Upside Contract had to be terminated in writing.”
259 In other words, from 13 March 2015 Mr Tekin understood that he could sell the Land because Mr Stratford had taken care of it. Thereafter the Firm did not specifically advise Mr Tekin that he could sell the Land but given the events on 13 March 2015, no occasion arose which required that specific advice to be given.
260 The only occasion for advice which is referred to in Mr Tekin’s closing submissions is the fact that Mr Tekin had “increasing financial problems”. However, to the Firm’s knowledge, from February until July 2015 Mr Tekin’s plan was to deal with his financial problems by refinance. Further, Mr Stratford knew from early 2015 that Mr Tekin was also taking some steps to sell the Land for a very high price or pursuant to a lucrative joint venture, which knowledge was inconsistent with a realisation that Mr Tekin was in need of advice that he could sell. Mr Tekin’s attempts to sell took place both before and after the Upside Contract was terminated and before and after the dispute with Upside arose.
261 Even if the Firm did owe a duty to advise Mr Tekin that he could sell the Land, there was no occasion upon which a solicitor acting with reasonable care would have given that advice. There was no breach of the duty.
(Emphasis added.)
In any event, for the reasons outlined above Mr Tekin has not proved that any defect in the advice given (or not given) by the Firm caused loss. At all times after December 2014 Mr Tekin wanted to sell the Land but only if it could be sold at a very high price or pursuant to a lucrative joint venture. Absent such an opportunity (and none has been proved), from early 2015 Mr Tekin wanted to refinance his continued ownership of the Land and undertake re-zoning work. From 17 July 2015 he had committed to 12 months of refinance. Nothing in the advice given by the Firm, nor the absence of specific advice that he could sell the Land, was a necessary condition to any loss suffered by Mr Tekin from not selling the Land before or after 17 July 2015.
228 At least from 13 March 2015 Mr Tekin’s wish immediately to sell the Land was based on his belief that he could sell it for a very high price or as part of a lucrative joint venture of the kind contemplated by the “offers” referred to in [71], [106] and [141] above. However if he could not procure such a sale or joint venture, Mr Tekin wanted to retain the Land for a further period of uncertain duration in the hope or expectation that such a sale or joint venture could be procured at a later date. That was Mr Tekin’s attitude throughout early 2015 and into early 2016. In particular, Mr Tekin formed that attitude before the dispute with Upside arose in mid-March 2015.
229 The conclusion stated in the preceding paragraph is to be inferred from the following objective facts, namely:
(a) in October 2014 Mr Tekin removed his most pressing financial concern (ADN’s bankruptcy notice) which had been the catalyst for him to enter the contract to sell the Land for only $7.8m;
(b) even in October 2014 Mr Tekin thought a price in excess of $7.8m was achievable as demonstrated by the fact that he and Mr Harsany went to the trouble of putting in place the Side Deed which presupposed that a higher price could be achieved;
(c) although no on-sale or re-sale was secured under the Side Deed, Mr Tekin’s dealing with prospective purchasers brought to his attention other offers, including one for $10.93m;
(d) in December 2014 Mr Harsany stated that refinance was more likely than completion of the sale at $7.8m – Mr Tekin was aware of Mr Harsany’s views and did not dissent from them;
(e) in early 2015 Mr Tekin gained further knowledge of the potential market for the Land by virtue of the offers referred to at [71] above;
(f) Mr Tekin said in cross-examination:
“PRIESTLEY: You certainly would not have been content would you to have sold the property for less than $10 million by the end of February 2015?
TEKIN: Correct.
PRIESTLEY: Did you say correct?
TEKIN: Yeah. I wouldn’t have.”
from which it is clear that Mr Tekin did not want to sell at any price;
(g) on 13 March 2015 Mr Tekin positively took steps to avoid the “risk” that he would have to sell the Land for $7.8m;
(h) even though he regarded it as ”expensive”, in March 2015 Mr Tekin would have accepted refinance from Chifley Securities if he had not received a better offer from Balmain NB;
(i) in April 2015 Mr Tekin gained further knowledge of the potential market as set out at [106] above;
(j) Mr Tekin accepts that he and Mr Doherty discussed including $125,000 in the amount of funds to be borrowed from Balmain NB, which shows that Mr Tekin placed some importance on being able to fund re-zoning work given his express desire otherwise to reduce the amount he had to borrow in order to save interest and possibly fees;
(k) Mr Tekin gained further knowledge of the potential market as set out at [141] above;
(l) Mr Tekin’s evidence as set out at [123] above makes clear that by July 2015 Mr Tekin’s desire to sell the Land as quickly as possible envisaged a sale for a very high price or a lucrative joint venture;
(m) it was not until September 2015 that Mr Tekin attended the meeting at Council after which Mr Doherty said that further re-zoning work would be a waste of money; and
(n) even then Mr Tekin persisted into early 2016 with further re-zoning work by retaining another town planner and having another preliminary report prepared.
230 The proposition that during 2015 Mr Tekin would have been willing to sell the Land at any price is inconsistent with the objective facts. On the contrary, I find that at all times from at least October 2014 Mr Tekin was willing to sell the Land at a price acceptable to him but not otherwise, and that from at least December 2014 an acceptable price was more than $10m. As set out above, at no time during 2015 (or at any other time) was there a prospect of there being a buyer for the Land being sold at more than $10m.
231 There is no basis in the evidence to find that the Upside dispute made a material difference to Mr Tekin’s attitude to selling the Land. …
232 The same conclusion flows through to 2016. In July 2015 Mr Tekin obtained refinance for a period of 12 months, which he subsequently extended for a further three months. Once the new finance was in place Mr Tekin had no need to make an immediate sale. He had 12–15 months to look for a purchaser at a high price or a joint venture partner. He had funds with which to undertake re-zoning work in the meantime.
233 Mr Tekin has not proved that the defective drafting of the Notice to Complete caused further loss by virtue of the Land not being sold prior to the Upside dispute being resolved. Specifically, Mr Tekin’s loss does not include the difference between the market value of the Land in 2015 and the $6.85m ultimately achieved in 2017. In the language of s 5D(1) of the Civil Liability Act 2002, the defective drafting of the Notice to Complete was not a necessary condition of Mr Tekin’s failure to sell the Land for a higher price.
234 The conclusion makes it unnecessary to make a finding about the market value of the Land at any particular time.
(Emphasis in original.)
Grounds 1-5 challenge the primary judge’s rejection of Mr Tekin’s case that the firm owed him a duty of care to advise him that he could sell the land, which was breached from 19 March 2015 until 5 July 2016. To the extent that ground 4 raises a distinct ground, it will be addressed separately.
Grounds 6-9 challenge the primary judge’s finding that the alleged breaches did not cause Mr Tekin to suffer any loss because he would not have been prepared to sell the land at a price less than $10 million and he had not shown that he would have sold the land for at least such a price or that any opportunity he lost to sell the land for at least that price had any value.
I propose in my reasons to adopt the parties’ grouping of the grounds for the purposes of their submissions on the appeal.
Ms Bampton submitted that the primary judge’s “fundamental error”, which underpinned these grounds, was in finding that at all times from 13 March 2015, Mr Tekin understood that he could sell the land. She submitted that this error led to the primary judge’s finding that there was no duty or breach with respect to the firm’s failure to advise him that he could sell the land during that period.
In support of this submission, Ms Bampton relied on the following sequence of events:
in mid-March 2015 Mr Stratford told Mr Tekin that he could not sell the land until the Upside contract had been terminated (J[84]);
on 13 March 2015, Mr Stratford, on Mr Tekin’s instructions, sent a notice of termination to Upside to terminate the Upside contract (J[86]);
on the evening of 13 March 2015, Mr Harsany rang Mr Tekin and told him that the notice of termination should not have been sent and that he was going to sue to get his deposit back and for damages (J[89]);
on about 19 March 2015, Mr Tekin told Mr Stratford about Mr Harsany’s phone call, to which Mr Stratford responded that the firm had made a technical error and that Mr Doherty would be talking to him “from here on” because he (Mr Stratford) did not do court matters (J[90]-[91]);
in May 2015, Upside commenced the Upside proceedings and lodged a caveat over the land, claiming an interest as a consequence of the payment of the deposit of $300,000 (J[110]);
Upside’s claim for damages included an amount for the difference between the market value of the land and the contract price of $7.8 million (J[110]);
later in May 2015, Mr Doherty told Mr Tekin that he would have to return the deposit of $300,000 “to get rid of the caveat” because “with the caveat there, we can’t do anything” (J[118]);
Mr Doherty, who understood that Mr Tekin was taking steps to market the land, did not tell Mr Tekin that, if he sold the land, he would be able to get the caveat discharged by paying the $300,000 from the proceeds; and
it was not until 5 July 2016 that Mr Doherty told Mr Tekin that he could sell the land for whatever he wanted because he was confident that Mr Tekin would be successful in the Upside proceedings (J[155]).
Ms Bampton submitted that it was significant that the evidence did not indicate that Mr Tekin had ever been told that the Upside contract had actually been terminated. In the alternative, she submitted that, even if Mr Tekin knew that the contract to sell the land had been effectively terminated, the firm was still obliged to advise him that he was, as a consequence, entitled to sell the land.
The primary judge found that Mr Tekin appreciated, once the notice of termination had been sent to Upside, that he was free to sell the property (J[259]). I reject Ms Bampton’s submission that this finding is undermined by the fact that Upside challenged the legality of Mr Tekin’s termination of the Upside contract. Mr Tekin was aware, from the angry phone call he received from Mr Harsany on the evening of 13 March 2015, that what Upside intended to claim from him was the return of the deposit and damages. There was no suggestion from Mr Harsany, or indication in the evidence, that Upside wanted an order for specific performance of the Upside contract or that Upside was in a financial position to complete the contract. Thus, however the Upside contract was terminated (by Mr Tekin’s notice of termination, or Upside’s acceptance of Mr Tekin’s repudiation of the contract by reason of his invalid notice of termination), it was, by 19 March 2015 at the latest, apparent to Mr Tekin that the Upside contract was no longer on foot. Further, Ms Bampton’s submissions were not supported by Mr Tekin’s evidence which relevantly rose no higher than that he did not really understand what was going on in the Upside proceedings.
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge.
(Footnotes omitted.)
Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff’s evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff’s evidence. It may be a ground for rejecting the plaintiff’s evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred. For that reason, the restrictions on appellate review laid down in Abalos v Australian Postal Commission (1990) 171 CLR 167 and other cases are likely to have little application.
(Emphasis added.)
In the analogous circumstances of the present case, it can be expected that Mr Tekin, at the time he gave evidence in the proceedings before the primary judge, may genuinely have believed that, if he had appreciated that he could sell the land between 13 March 2015 and 5 July 2016, he would have sold the land at a higher price than the $6.85 million for which Balmain NB sold it in mid-2017 in the exercise of its rights as a secured creditor. Indeed, the primary judge made an express finding to this effect in J[5] (set out in full above) that “Mr Tekin has naturally come genuinely to believe that he would have avoided adverse consequences which he has in fact suffered even though the objective facts demonstrate otherwise.”
The primary judge had the benefit of seeing and hearing Mr Tekin give evidence as to his state of mind concerning whether he was legally entitled to sell the land in the period from 13 March 2015 until 5 July 2016. His Honour’s assessment was based not only on Mr Tekin’s evidence when viewed in the surrounding circumstances but the objective facts and probabilities as revealed by the evidence, including the sequence of events. His Honour was entitled to infer that, if Mr Tekin had actually believed that he was not entitled to sell the land until the Upside proceedings had been determined or otherwise resolved, he would not have retained solicitors in November 2015, some six months before the hearing of the Upside proceedings, and selling agents from, at the earliest, January 2016. Mr Tekin’s engagement of such service providers was, in his Honour’s view, inconsistent with Mr Tekin’s asserted belief that he was not entitled to sell the land until July 2016. The primary judge’s approach in the present case was to have regard to “objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred”, to borrow the words used by McHugh J in the passage from Chappel v Hart extracted above.
The primary judge also addressed the argument put on behalf of Mr Tekin that, if he had appreciated that he could sell the land, he would not have needed to go behind the firm’s back (as referred to in J[144], extracted above). As the primary judge found at J[144], Mr Tekin’s desire to cease advertising the land at a time proximate to the hearing was insufficient to explain why he retained the selling agents and new solicitors prior to that time.
For these reasons, I am not persuaded that any of the challenges to the primary judge’s findings in grounds 1-3 or 5 have been made out. As Ms Bampton separately addressed ground 4, it is convenient to deal with it next.
The primary judge erred in failing to decide a further material issue raised by the appellant, being that the respondents breached their duty of care owed to the appellant and were negligent by failing to advise him that, after the dispute with Upside arose, he could sell the Land to a third party upon the repayment of the $300,000 deposit to Upside, and that payment could have been made upon settlement of a resale of the Land.
This ground concerns the forensic effect of the advice given by Mr Doherty to Mr Tekin in J[118], which was that, in mid-May 2015, Mr Tekin would have to return the deposit of $300,000 to get rid of the caveat lodged by Upside as “with the caveat there, we can’t do anything” (J[118]). Mr Doherty accepted in evidence that he could have advised Mr Tekin that he could sell the land and repay Upside the deposit from the proceeds of sale and that this was “pretty obvious advice from a lawyer’s perspective that could be given to a client in … May 2015”.
I understood the effect of Ms Bampton’s submissions with respect to ground 4 was that Mr Tekin sought Mr Doherty’s advice as at the time the caveats were lodged by WRV and Upside and that this constituted an occasion on which Mr Doherty could and, on Mr Tekin’s case, should have advised Mr Tekin that he was at liberty to sell the land (since one way of dealing with a caveat is to sell the land and, on settlement, pay the caveator the amount stipulated in the caveat). Ms Bampton submitted, in effect, that Mr Doherty was negligent in failing to give that advice and that the primary judge was in error in failing to make that finding. She also submitted that the primary judge’s finding at J[259] that there was no occasion between 13 March 2015 and 5 July 2016 on which such advice ought to have been given was erroneous, having regard to the discussion about removal of the two caveats in May 2015, which amounted to an occasion on which the advice could have been given.
I am not persuaded that this ground has been made out. For the reasons given above, the primary judge was correct to find that Mr Tekin knew, from 13 March 2015, that he was at liberty to sell the land. In these circumstances, there was no need for the primary judge to make a hypothetical finding that, if Mr Tekin had not known at that time that he was at liberty to sell the land, Mr Doherty was obliged to tell him on the occasion in May 2015 when Mr Tekin asked him about the caveats, including the one which had been lodged by Upside on 6 May 2015.
For these reasons, the error alleged in ground 4 has not been made out.
It follows that it is not necessary to address grounds 6-9. However, I propose to do so in order to deal with the parties’ submissions on these grounds.
Ms Bampton submitted that the primary judge made a fundamental error in that his Honour applied the wrong approach to factual causation in the context of a loss of opportunity case. She submitted that Mr Tekin’s alternative case (which was an alternative to his primary case that he would have sold the land) was that he lost the opportunity to sell the land in the buoyant market that existed in 2015 and 2016. She submitted that because of the firm’s breaches, Mr Tekin did not pursue that sale because he thought he could not sell either at all or without prejudicing his position in the ongoing Upside litigation. She submitted that, in respect of the loss of opportunity case, the relevant question was not whether Mr Tekin could prove on the balance of probabilities that he would have sold the land, but rather whether he would have pursued the opportunity to sell the land. She submitted that his Honour was in error in failing to accept the loss of opportunity case.
Ms Bampton submitted that, but for the firm’s negligence, Mr Tekin would have either:
pursued an offer of at least $10 million for the land; or
met the market, even if the market had indicated that the land was worth less than $10 million.
Ms Bampton relied on La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; [2011] FCAFC 4 (La Trobe) at [96], [109]-[116]. In La Trobe, a lender advanced money to the borrower in reliance on a misleading valuation of the secured land. The lender claimed interest on the principal sum, on the basis that, but for the misleading valuation, it would have advanced the same sum to another borrower and was, thus, deprived of the opportunity to earn interest on the hypothetical transaction. The lender relied on the following evidence given by its senior manager, extracted at [37]:
The $2.4 million lent to Jet Constructions would have been lent to another borrower or borrowers if it had not been lent to Jet Constructions. The demand for commercial loans of the type made to Jet Constructions as at July/August 2004 exceeded the funds held by the Fund available for such loans.
The valuer objected to the evidence on the basis that it was not admissible as opinion evidence and relied on s 76(1) of the Evidence Act 1995 (NSW), which provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. The trial judge in La Trobe rejected the evidence and dismissed La Trobe’s claim: La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2010] FCA 250 (Marshall J).
La Trobe’s appeal was allowed (Finkelstein J, Jacobson and Besanko JJ agreeing) on the basis that the senior manager’s evidence was admissible as it amounted to statements of fact rather than opinion and was likely to be the most reliable evidence of what the lender would have done had it not made the loan to the borrower. Of present relevance, Jacobson and Besanko JJ said:
112 It seems to us that the question is whether an applicant has established on the balance of probabilities that there was another commercial opportunity of some value or there were other commercial opportunities of some value. An applicant who is able to establish a particular opportunity which has been lost as a result of contravening conduct will no doubt have an easier path to establishing what is necessary for the purposes of recovery. At the same time, an applicant in a case such as this who can do no more than point to the fact that he or she is in the business of lending money and was making loans at the time of the improvident loan is likely to fail to establish the loss of a commercial opportunity of some value.
113 However, in our respectful opinion it is an error to proceed on the basis that unless an applicant can establish a particular alternative transaction he or she cannot establish a lost commercial opportunity of some value. …
…
115 It is true that the evidence relied on by the appellant in this case being the evidence of Mr Gidman was very general. Nevertheless, it was not seriously challenged. Counsel for the respondent confined himself to eliciting from Mr Gidman that he could not identify a particular alternative transaction. We are satisfied having regard to Mr Gidman’s evidence that the appellant established a lost commercial opportunity of some value.
116 The determination of the value of that opportunity is more difficult because on the evidence it is impossible to be precise. We think it more probable than not that an alternative transaction would have been entered into, but at this stage of the inquiry it is the probabilities and possibilities which must be assessed. We think a small allowance should be made for the possibility that an alternative transaction would have proved improvident.
La Trobe was referred to by Barrett AJA at [101] in Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 (Mal Owen). In that case, a former client sued a solicitor for not prosecuting proceedings against the client’s debtor expeditiously, as a result of which the client lost the chance of recovering the debt as the debtor was declared bankrupt. Barrett AJA, at [99]-[101], addressed Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 (Sellars) and Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18. On the basis of these authorities, Barrett AJA identified the two elements which must be proved to establish a claim based on loss of opportunity, as follows:
causation: namely, that the plaintiff would probably have received an opportunity of value but for the defendant’s negligence (see, in New South Wales, s 5D of the Civil Liability Act); and
if so, the value of that loss of opportunity, which is ascertained by reference to the “degree of probabilities, or possibilities, inherent in the plaintiff’s succeeding had the plaintiff been given the chance” of which the plaintiff has been deprived: Mal Owen at [100].
Barrett AJA explained at [101] of Mal Owen:
At each of the two stages, therefore, attention must be given to a question relevant to the value of the lost opportunity. At the first stage concerned with causation, the task is no more than to confirm that the value is not in the realms of the merely theoretical or negligible - in other words, to establish, according to the balance of probabilities, that there is some colour of value to the lost opportunity. It is only if the second stage is reached (after causation is established at the first) that anything approaching particular quantification is required. An assessment made at the second stage by reference to the degree of probabilities and possibilities of factual hypotheses may require a process of estimation extending even to a degree of guesswork and may lie at any point within a broad range.
In La Trobe, once the unchallenged evidence of the senior manager (that the demand for loans at the relevant time exceeded the supply) was admitted, the lender was able to establish the first element of causation: that, but for the respondent’s misleading conduct, it lost a valuable opportunity (to lend the same amount to a different borrower). The second element, the value of the opportunity, was discounted slightly to take account of the possibility that the hypothetical loan would also have been improvident.
In La Trobe, the lender was in the business of lending. The evidence established that the demand for loans in the relevant period exceeded the supply of funds available to the lender. In those circumstances, that evidence was, as the Full Federal Court found, sufficient to establish that the lender had lost an opportunity of some value: being the opportunity to lend to another borrower at the rate of interest at which it made the loan to the borrower.
The approach taken in La Trobe was not apposite to the present case, where the evidence did not establish that there was any demand for the land at $10 million, being the threshold below which Mr Tekin was not prepared to sell it. In these circumstances, the primary judge was entitled not to be satisfied that Mr Tekin would have sold the land if he had appreciated that he was free to do so. His Honour’s careful and comprehensive reasons for this finding at J[69]-[73] and [230]-[234] are reproduced above. Thus, Mr Tekin failed to establish on the balance of probabilities that he satisfied the first of the two elements in Mal Owen.
Ms Bampton also sought to establish that the primary judge was in error in finding that Mr Tekin lost no real opportunity of value to sell the land for $10 million or more. She accepted that the joint expert report did not support the proposition that the land was worth more than $9,270,000 (being the value assessed by Mr Tekin’s expert valuer, David Anderson, as at September 2016, four months after the end of the relevant period, in a rising market, which expressly excluded from consideration the actual sale price of the land in 2017 for $6.85 million). Ms Bampton also relied on Mr Anderson’s opinion that, had the land been rezoned R4, it would have been worth more than $10 million. This figure is speculative in circumstances where the evidence of Ms Wrightson did not support a conclusion other than it was uncertain whether the land would be rezoned R4. Thus, the assumptions that Mr Anderson was instructed to make – that Mr Tekin would have obtained R4 zoning for the land between December 2015 and September 2016 and would have immediately offered the land for sale – were not made out on the evidence, rendering his opinion of no value.
Ms Bampton also relied on the evidence adduced by Mr Tekin of offers made for the land during the relevant period as evidence of the market value of the land at that time, while accepting that none of the offers he received was capable of acceptance. These were detailed by the primary judge at J[71]-[72] (extracted above).
If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
Since the enactment of s 5D(3) of the Civil Liability Act, a plaintiff’s evidence of what he or she would have done if the negligent person had not been negligent has been rendered largely inadmissible. Indeed, the provision indicates the extent to which Parliament regards such evidence as unhelpful and unreliable. Although Mr Tekin’s evidence of what he would have done was admitted, the primary judge was entitled to regard the surrounding circumstances as providing a better guide to the determination of what he would have done but for the firm’s putative negligence than Mr Tekin’s own evidence, which was inevitably affected by hindsight and self-interest.
I am not persuaded that there is any reason to disturb the primary judge’s findings of fact. The evidence of “offers” adduced by Mr Tekin was, in so far as the offers were in excess of $10 million, at odds with the joint experts’ view of the market value of the land. Further, Ms Bampton’s acceptance that none of these “offers” was capable of acceptance is significant since the probative value of such offers is, at best, low. At J[230]-[233], the primary judge explained his conclusion that it was not necessary to make a finding about market value (at J[234]). Further, as none of the offers about which Mr Tekin gave evidence was capable of acceptance, these offers were insufficient to impugn the range in the experts’ opinion of market value set out in their joint report.
In the present case, there was no credible evidence that Mr Tekin was prepared to “meet the market” by selling the land for less than $10 million. To the contrary, the evidence established, as the primary judge found, that Mr Tekin was intent on retaining the land in order to capitalise on the potential re-zoning, as evident from the interim finance he obtained to permit him to do so. Further, as the experts’ opinions of the value of the land indicated, the market value of the land increased considerably between February 2015 to September 2016. Mr Tekin was not one to abandon an opportunity for a greater gain, which may explain why he retained the land for as long as he did and, indeed, forewent the opportunity of selling it himself as his default entitled Balmain NB to sell it as secured creditor. The causal potency of the firm’s breaches was, in these circumstances, zero, since even had the firm expressly told him that he was free to sell, Mr Tekin would not have sold, and did not lose a valuable opportunity to sell, the land until after 5 July 2016 in any event. The proposition advanced by Ms Bampton – that Mr Tekin would have “met the market” – is redolent with hindsight reasoning and has not been made out.
Nor does a different result ensue if the matter is analysed by reference to equitable principles of breach of fiduciary duty rather than negligence. In a case such as the present, where the principal allegation is a failure to advise, Mr Tekin still bore the onus of proving that his losses were, on a common sense view of causation, caused by the breach: see the discussion of the authorities in [2024] NSWCA 232 at [135]-[145] (Stern JA). As was said in (2003) 212 CLR 484; [2003] HCA 15 at [44] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ), quoting Mummery LJ, “[t]here is no equitable by-pass of the need to establish causation”.
The only remaining issue relates to the costs of Mr Tekin’s notice of motion that the hearing of the appeal be adjourned, which was not pressed.
The background to the motion, in so far as it bears on the question of costs, is as follows. On 1 December 2025, directions were made which required Mr Tekin to file and serve the Red, Black and Blue appeal books, his submissions and chronology by 20 January 2026; the firm to file and serve its written submissions by 16 February 2026; and Mr Tekin to file and serve his written submissions in reply by 2 March 2026 and the Orange appeal book by 5 March 2026. The hearing of the appeal was listed for 20 March 2026.
There was a delay in preparing the appeal books which were ultimately served on the firm on 28 January 2026.
On 23 February 2026, the parties provided the Court with consent orders extending the time within which the firm was to file and serve its written submissions to 27 February 2026 and the time within which Mr Tekin was to file and serve his submissions in reply to 13 March 2026. The Registrar notified the parties that the consent orders would not be made and that all documents had to be filed by 5 March 2026.
The firm served its written submissions on 27 February 2026 and Mr Tekin filed a notice of motion on 5 March 2026. As soon as the motion was filed, the Court granted the extensions of time sought by the parties in their draft consent orders and vacated the hearing of the motion.
Mr Tekin seeks his costs of the notice of motion on the basis that it was necessitated by the late service of the firm’s submissions. The firm resists a costs order on the basis that it served its submissions late because the appeal books had been prepared late. Mr Priestley SC, who appeared for the firm, submitted that the costs of the motion could be included in the costs of the appeal.
It was the late service of the appeal books that caused the firm to file its submissions late, which was what brought about the notice of motion. In these circumstances, the costs of the motion ought form part of the costs of the appeal, which ought follow the event.
For the reasons given above, I propose the following orders:
Dismiss the appeal.
Order the appellant to pay the respondents’ costs, including the costs, if any, of the notice of motion filed by the appellant on 5 March 2026.
STERN JA: I agree with Adamson JA.
**********
Tekin
Stratford
[2003] HCA 22
(2016) 257 CLR 440
(1998) 195 CLR 232
(2003) 214 CLR 118
(2011) 190 FCR 299
(2018) 97 NSWLR 1163
(1994) 179 CLR 332
(1999) 73 ALJR 306
(2003) 212 CLR 484
(1990) 171 CLR 167
Appeal dismissed. The appellant was ordered to pay the respondents’ costs, including the costs, if any, of the notice of motion filed on 5 March 2026: [100].
However, the firm otherwise defended Mr Tekin’s claim on the following bases:
at all material times between 19 March 2015 when the Upside contract was terminated and 5 July 2016 when Mr Doherty told him he was free to sell the land, Mr Tekin knew that he was free to sell the land; and
in any event, even if Mr Tekin had not been aware of the termination of the Upside contract, he would not have sold the land during that period since he was not prepared to sell it for less than $10 million and had failed to prove that he could have sold it for that sum or that the loss of opportunity to sell the land for an amount greater than $6.85 million (for which it was ultimately sold) had any value.
On 11 October 2014, Mr Harsany sent an email to Mr Tekin which contained a conditional offer to purchase the land for $7.5 million. On 12 October 2014, Mr Tekin responded by inserting his counter-offer in italics on Mr Harsany’s email. In the counter-offer, Mr Tekin stipulated a purchase price of $7.8 million. In his covering email, Mr Tekin said:
Furthermore, the primary judge’s inference that Mr Tekin appreciated from mid-March 2015 that he was free to sell the land was based not only on the evidence of Mr Tekin’s conduct from 2014 but also on Mr Tekin’s conduct in retaining “new solicitors and selling agents” in the period from November 2015. His Honour found that Mr Tekin’s conduct was inconsistent with a belief that he could not sell the land until the Upside proceedings were resolved.
The advantages enjoyed by trial judges in finding facts were summarised by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [90]:
Section 5D of the Civil Liability Act sets out the general principles with respect to causation. Section 5D(3) provides:
The position is no different with respect to the firm’s alleged failure to advise Mr Tekin to seek independent advice. Ms Bampton’s submission that, had Mr Tekin sought independent advice, he would have been told that he was at liberty to sell the land does not result in an entitlement to damages. For the reasons given by the primary judge, Mr Tekin would not have sold, and did not lose a valuable opportunity to sell, the land during the relevant period because he was not prepared to sell it for less than $10 million as his expectations as to potential gain exceeded the land’s market value as established by the evidence.
In these circumstances, the primary judge was correct to find that Mr Tekin had not discharged his onus of establishing causation.
For these reasons, grounds 6-9 would not have been made out, even if grounds 1-5 had been made out.