Adkins v Evans & Ors [2019] QDC 77

DISTRICT COURT OF QUEENSLAND CITATION: Adkins v Evans & Ors [2019] QDC 77 PARTIES: TERRY MAXWELL ADKINS (Plaintiff) v BARRY ANDREW EVANS (First Defendant) and DARLING DOWNS DEVELOPMENTS PTY LTD (Second Defendant) and SWITCH THAT LOAN PTY LTD (Third Defendant) FILE NO/S: D43/2018 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Mackay DELIVERED ON: 17 May 2019 DELIVERED AT: Mackay HEARING DATE: 7 and 9 May 2019 JUDGE: Smith DCJA ORDER: 1. Damages on the default judgment against the First Defendant issued 18 December 2018 are assessed in the sum of $250,176.83 plus interest in the sum of $11,950.23. 2. I order the First Defendant pay the Plaintiff’s costs as agreed or assessed on the standard basis. CATCHWORDS: TORTS – NEGLIGENCE – Assessment of damages TORTS- CONVERSION- Assessment of damages TRADE AND COMMERCE- CONSUMER PROTECTION- Misleading and deceptive conduct- remedies EQUITY- Breach of Fiduciary Duty- assessment of compensation -- 1 of 15 -- 2 Australian Consumer Law 2010 (Cth) ss 18, 30, 236, 237, 243 Uniform Civil Procedure Rules 1999 (Q) rr 284, 509 British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways [1912] AC 673 Bunnings Group Ltd v Chep Australia (2011) 82 NSWLR 420 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 160 CLR 594 Gould v Vaggelas (1984) 157 CLR 215 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Ltd (2002) 210 CLR 109; [2002] HCA 41 Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 Kyogle Shire Council v Francis (1988) 13 NSWLR 396 MacKenzie v McDonald [1927] VLR 134 Pilmer v Duke Group Ltd (in Liq) (2001) 207 CLR 165; [2001] HCA 31 Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) ATPR 40-135 R v Jell ex parte Attorney General [1991] 1 Qd R 48 Shaddock v Parramatta City Council (1981) 150 CLR 225 Vasta v Dynwest Pty Ltd [1988] 1 Qd R 79 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Fleming on Torts 10th ed. 2011 COUNSEL: Solicitors for the Plaintiff SOLICITORS: Wallace and Wallace Lawyers for the Plaintiff No appearance for the defendants Introduction [1] This is an assessment of damages pursuant to r 284 of the Uniform Civil Procedure Rules 1999. -- 2 of 15 -- 3 Claim [2] The plaintiff claims against the first defendant $130,000 for negligence; $110,580 for breach of fiduciary duty or in the alternative pursuant to s 237 of the Australian Consumer Law; in the further alternative $45,000 for conversion and orders pursuant to s 243 of the Australian Consumer Law that the contract is void ab initio and that the first defendant refund the sum of $695,000 to the plaintiff in exchange for a transfer of the property. [3] The plaintiff claims against the second defendant $110,580 for breach of fiduciary duty and/or in the alternative pursuant to s 237 of the Australian Consumer Law; and orders pursuant to s 243 of the Australian Consumer Law that the contract is void ab initio and the second defendant refund the sum of $695,000 to the plaintiff in exchange for a transfer of the property. [4] As against the third defendant the plaintiff claims $110,580 for breach of fiduciary duty and/or in the alternative pursuant to s 237 of the Australian Consumer Law or in the alternative $45,000 for conversion. [5] In the statement of claim the plaintiff alleges the first defendant was an accountant, was a financial adviser, was a director and shareholder of the second defendant and owed to the plaintiff a fiduciary duty. The second defendant carried on the business of mortgage broking.1 [6] In about 2015 the plaintiff received a compensation payout for personal injuries arising from a motor vehicle accident (MVA) in the sum of about $500,000.2 During the conduct of that motor vehicle claim for about three years the plaintiff claimed against his income protection insurance and did not lodge tax returns with the Australian Taxation Office.3 [7] At the conclusion of the MVA claim, the plaintiff instructed the first defendant to lodge tax returns on his behalf. After this lodgement the ATO assessed the plaintiff as owing $130,000 in tax. It is alleged4 that the first defendant failed to exercise due care and skill of a competent accountant because: (a) the Compensation was an after tax settlement and therefore tax free; (b) the income protection insurance payments were net payments and the insurer ought to have remitted PAYG tax on an “as you go” basis; (c) if the income protection payments were gross, then the plaintiff ought not to pay $43,000 in tax per year whilst only earning $52,000 in assessable income; (d) the first defendant failed to provide the plaintiff with correct taxation advice; 1 Paragraph 1 of the Statement of Claim (SOC). 2 Paragraph 2 of the SOC. 3 Paragraph 3 of the SOC. 4 Paragraph 7 of the SOC. -- 3 of 15 -- 4 (e) the first defendant lodged tax returns which caused the plaintiff to incur a substantial tax liability when no tax ought to have been payable. [8] It is alleged as a consequence the plaintiff has suffered loss and damage in the sum of $130,000. [9] In or about late 2016, the plaintiff sought advice from the first defendant as to how to manage the compensation. The first defendant advised the plaintiff to: (a) purchase a vacant block of land at 2 Cypress Drive, Broadbeach Waters from Darling Downs Developments Pty Ltd; (b) to pay $600,000 to the first defendant by way of a loan to be obtained from the Pepper Group Limited for $580,000 for the purchase of the property and $20,000 to the first defendant to arrange finance, obtain planning approvals and obtain architects plans for the profit; (c) the property could be resold once a home was constructed for approximately $2.1 million as the first defendant had recently sold an adjacent block for a similar amount.5 [10] It is alleged6 that the first advice referred to above was given in breach of the first defendant’s fiduciary duty to the plaintiff as: (a) the second defendant was a company owned and operated by the first defendant; (b) the first defendant preferred his own interest to that of the plaintiff; (c) the first defendant profited from the transaction when it was unconscionable in the circumstances for him to do so. [11] In reliance on the first defendant’s advice, the plaintiff entered into a contract with the second defendant for the purchase of the property and obtained a loan from Peppers.7 It is alleged that the purchase price in the contract was $695,000. [12] It is alleged that the first defendant engaged in misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law (ACL) because the first defendant mislead the plaintiff as to the purchase price payable under the contract (the representation was $580,000). And the matters pleaded were done in trade and commerce.8 [13] It is further alleged that the price representation was a false or misleading representation concerning the price payable for the property within the meaning of that term and s 30(1)(c) of the ACL.9 5 Paragraph 11 of the SOC. 6 Paragraph 12 of the SOC. 7 Paragraph 13 of the SOC. 8 Paragraph 15 of the SOC. 9 Paragraph 16 of the SOC. -- 4 of 15 -- 5 [14] It is further alleged that the resale representation was false and misleading because the adjoining block was owned by the second defendant not the first defendant and the block was sold for $725,000 not $2.1 million.10 [15] It is alleged the resale representation was made in trade or commerce; was misleading and deceptive within the meaning of s 18 of the ACL and was a false and misleading representation about a characteristic of the property within the meaning of s 30(1)(e) of the ACL.11 [16] The plaintiff relied on the price representation and the resale representation to enter into the services contract and agreed to pay the first defendant $20,000.12 Had the plaintiff known the true state of affairs with respect to the price representation and the resale representation, the plaintiff would not have entered into the contract or paid the first defendant $20,000.13 [17] Further, or alternatively it is alleged the first defendant has refused or otherwise failed to obtain planning approvals or pay architect’s fees.14 [18] On or about 13 June 2017 the first defendant advised the plaintiff:15 (a) the first defendant was an owner of the second defendant; (b) the third defendant operated a RAMS Financial Group Pty Ltd franchise; (c) the first defendant would arrange a loan for the plaintiff through the third defendant for $1.1 million to be applied in part to paying down the Peppers loan and in parts to construct a house on the property; (d) that in order to establish a history of savings, the plaintiff would need to open a RAMS account in his name and deposit $45,000 into the same; (e) the plaintiff would earn $500 per month interest on the deposit. [19] The first defendant provided the plaintiff with bank details of the account for paying of the deposit.16 The first defendant represented the account was a RAMS account.17 This was misleading and deceptive within s 18 of the ACL because the account was an ANZ account and in the name of the third defendant.18 In reliance on this second advice, the interest representation and the account representation, the plaintiff paid the sum of $45,000 into the account.19 [20] It is alleged that the first defendant was in contravention of the ACL; the third defendant was knowingly concerned in this contravention and in the alternative both 10 Paragraph 17 of the SOC. 11 Paragraph 18 of the SOC. 12 Paragraph 20 of the SOC. 13 Paragraph 21 of the SOC. 14 Paragraph 22 of the SOC. 15 Paragraph 24 of the SOC. 16 Paragraph 25 of the SOC. 17 Paragraph 26 of the SOC. 18 Paragraph 27 of the SOC. 19 Paragraph 28 of the SOC. -- 5 of 15 -- 6 defendants converted the plaintiff’s money and the first defendant was in breach of his fiduciary duties to the plaintiff.20 [21] The first defendant has refused or failed to obtain the loan in accordance with the second advice.21 [22] It is alleged the plaintiff has been unable to construct a house on the property; and has been paying holding costs for the property of $2,200 per month for the Peppers loan for 19 months and $3,400 for Council rates.22 [23] It is alleged that the plaintiff has unsuccessfully tried to sell the property in order to mitigate his loss. [24] As a result of the defendant’s breach of fiduciary duty, breaches of the ACL and conversion it is alleged that the plaintiff has suffered loss and damage totalling $110,580.00 as follows:23 (a) monies paid for approvals and plans $20,000; (b) monies paid to the RAMS account $45,000; (c) Pepper Group costs $42,180; (d) rates $3,400. [25] When the matter first came on for hearing on 7 May 2019 I was concerned that the first defendant had not been served.24 I made a further order for substituted service by leaving the documents at 3/11 Hooker Boulevard, Broadbeach Waters and that the first defendant be advised by text message of the hearing and where the documents could be obtained. [26] The matter was adjourned until 9 May 2019. [27] I am satisfied that service has been effected under this order.25 Principles relating to the assessment [28] Rule 509 of the UCPR provides: “Assessment (1) Unless the court directs otherwise, an assessment of damages must be conducted as nearly as possible in the same way as a trial. (2) The hearing date for assessment must be fixed under part 2. (3) When the hearing date is fixed, the plaintiff must serve notice of the hearing date on the defendant. 20 Paragraph 29 of the SOC. 21 Paragraph 30 of the SOC. 22 Paragraph 31 of the SOC. 23 Paragraph 33 of the SOC. 24 Vasta v Dynwest Pty Ltd [1988] 1 Qd R 79 at p 86. 25 Affidavit of Gregory Smart filed 8 May 2019. -- 6 of 15 -- 7 (4) However, if judgment is obtained in a Magistrates Court under chapter 9, part 1, subrule (3) does not apply and the registrar may proceed immediately to assess damages or refer the assessment of damages to a court constituted by a magistrate, without notice to the party against whom the judgment was obtained.” [29] One must therefore examine the allegations as to liability and then consider the quantum of the claim. Evidence [30] The plaintiff has sworn an affidavit on 23 April 2019. The plaintiff says that the first defendant Mr Evans was his accountant and financial planner. He placed great reliance on the first defendant because he was not financially sophisticated; he believed him to be an accountant and a financial planner and the first defendant told him about notable successful property developments he had undertaken and he appeared to be wealthy and successful.26 [31] In or about 2015 the plaintiff received a compensation payout of about $500,000 in the hand by reason of a motor vehicle accident. He relied on the first defendant’s advice with respect to taxation and investment issues arising from his claim and compensation.27 After he received the compensation the first defendant recommend he purchase 2 Cypress Drive, Broadbeach Waters from him for $580,000 and the plaintiff pay the first defendant $20,000 to arrange finance, obtain planning approvals and obtain architects’ plans for the block.28 As it turns out, the 2 Cypress Drive property was owned by the first defendant’s company Darling Downs Developments Pty Ltd (the second defendant). [32] The plan was for the plaintiff to borrow $600,000 from the Pepper Group to pay the two sums. The first defendant represented that once the house was built he would be able to resell it for 2.1 million dollars as he had sold the adjoining block for that price.29 [33] On or about October 2016, the plaintiff obtained a loan for the purchase of the property. Exhibit TMA1 is a copy of the loan agreement between the plaintiff and Future Financial One Pty Ltd trading as Future Financial. The loan was only for $486,500. The plaintiff does not know why that is the case.30 [34] On 23 October 2016 the plaintiff entered into a contract with the second defendant for the purchase of 2 Cypress Drive for the sum of $695,000 with a deposit of $140,000. The plaintiff says that he did not know that the contract price was higher than the $580,000 represented until the solicitor pointed it out to him during these proceedings. A copy of the contract is marked TMA2.31 26 Paragraph 3 of the affidavit of the plaintiff sworn 23 April 2019. 27 Paragraph 5 of the affidavit of the plaintiff sworn 23 April 2019. 28 Paragraph 6 of the affidavit of the plaintiff sworn 23 April 2019. 29 Paragraph 7 of the affidavit of the plaintiff sworn 23 April 2019. 30 Paragraph 8 of the affidavit of the plaintiff sworn 23 April 2019. 31 Paragraph 9 of the affidavit of the plaintiff sworn 23 April 2019. -- 7 of 15 -- 8 [35] Despite various requests, the first defendant never obtained any planning approvals or provided him with architects’ plans and he has wasted the $20,000 paid in fees to the first defendant. [36] Attached and marked TMA3 is a search which shows that 2A Cypress Drive, Broadbeach Waters was sold by the second defendant for $725,000 in August 2016.32 A search shows that the first defendant, the second defendant nor any of his other companies ever owned 4 Cypress Court.33 Had the plaintiff known that the representation by the first defendant about selling the adjoining block for 2.1 million dollars had been false, he would never have entered into the transaction relating to 2 Cypress Drive.34 [37] The transfer duty summary dated 13 March 2017 shows that he had to pay $24,300 in stamp duty on the purchase of the property.35 Exhibit TMA6 is the settlement statement for the purchase dated 13 March 2017. This shows he paid a sum of $97,000 towards the settlement although he was not aware of that at the time.36 [38] Exhibit TMA7 shows that he also paid $10,702.05 in land tax although he does not specifically recall this payment.37 [39] On 16 August 2018 the plaintiff entered into a contract to sell 2 Cypress Drive for $620,000.38 There were further costs of sale of $876.25. [40] Further, he incurred agents’ commission of $18,600.39 He also paid rates at $1,567.57 per half year for two years.40 [41] He also paid $2,023 per month in interest payments to Future Financial.41 [42] In June 2017, the first defendant told the plaintiff he owned a RAMS Financial Group Pty Ltd franchise and that he would arrange for a loan of 1.1 million dollars to pay out the Future Financial Group loan and construct a dwelling at 2 Cypress Drive.42 The first defendant also told the plaintiff he would need to deposit $45,000 into a RAMS account which would earn him $500 per month in interest. The purpose of this was to show a history of savings. The first defendant gave the bank account details to the plaintiff by text and as a result the plaintiff deposited the sum of $45,000 into the account on 15 June 2017. At all times he believed the RAMS account was established in his name until he contacted RAMS in late 2017 and was told there were no accounts in his name and the RAMS account had been withdrawn by Mr Evans’ franchise. [43] He has never been repaid the $45,000 and has only received one or two payments of $500 interest before the first defendant stopped communicating with him. 32 Exhibit TMA3 and paragraph 11 of the affidavit of the plaintiff sworn 23 April 2019. 33 Paragraph 12 of the affidavit of the plaintiff sworn 23 April 2019. 34 Paragraph 13 of the affidavit of the plaintiff sworn 23 April 2019. 35 Exhibit TMA5 and paragraph 14 of the affidavit of the plaintiff sworn 23 April 2019. 36 Paragraph 15 of the affidavit of the plaintiff sworn 23 April 2019. 37 Paragraph 16 of the affidavit of the plaintiff sworn 23 April 2019. 38 Exhibit TMA8 and paragraph 17 of the affidavit of the plaintiff sworn 23 April 2019 39 Paragraph 21 of the affidavit of the plaintiff sworn 23 April 2019. 40 Exhibit TMA12 and paragraph 22 of the affidavit of the plaintiff sworn 23 April 2019. 41 Exhibit TMA13 and paragraph 23 of the affidavit of the plaintiff sworn 23 April 2019. 42 Paragraph 24 of the affidavit of the plaintiff sworn 23 April 2019. -- 8 of 15 -- 9 Submissions [44] The plaintiff only seeks an assessment as against the first defendant as both the second and third defendants have been deregistered. The plaintiff claims three heads of damages namely: (a) The transaction cost of purchasing, holding and disposing land described as 2 Cypress land; (b) Damages for conversion; and (c) Damages for negligent tax advice. [45] It is submitted that absent any defence, there was a price representation and a resale representation which were false and the plaintiff relied on these to enter into the transaction. [46] It is submitted that damages should be assessed pursuant to s 237 of the Australian Consumer Law. Alternatively a compensation for breach of a fiduciary duty is sought. [47] As to conversion, the plaintiff claims a sum of $45,000. [48] The plaintiff abandons his claim in respect of the taxation amounts. Liability ACL Claims [49] With respect to the actions brought pursuant to the ACL, section 18 provides: “Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).” [50] Section 30 of the ACL provides: “False or misleading representations about sale etc. of land (1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land: (a) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or (b) make a false or misleading representation concerning the nature of the interest in the land; or -- 9 of 15 -- 10 (c) make a false or misleading representation concerning the price payable for the land; or (d) make a false or misleading representation concerning the location of the land; or (e) make a false or misleading representation concerning the characteristics of the land; or (f) make a false or misleading representation concerning the use to which the land is capable of being put or may lawfully be put; or (g) make a false or misleading representation concerning the existence or availability of facilities associated with the land.” [51] With respect to actions of this kind under the ACL it must first be borne in mind the representations must be made in “trade or commerce”. This involves commercial dealing.43 [52] With respect to the meaning of “misleading or deceptive”, mislead means to “lead astray or to lead into error and deceive means “to cause to believe what is false”.44 [53] With respect to the action for negligence it must be proved that: (a) A duty was owed by the defendant to the plaintiff. (b) There was a breach of the duty. (c) That damage resulted.45 [54] With respect to the action for breach of fiduciary duty in Hospital Products Ltd v United States Surgical Corp46 it was held that accepted fiduciary relationships are relationships of trust and confidence where one may exercise power over the other. [55] I would consider the relationship between a client and accountant to be one of these. [56] As to the action for conversion, in order to succeed a plaintiff must establish a dealing by the defendant in the plaintiff’s chattels in a manner repugnant to the plaintiff’s rights as owner.47 Remedies ACL [57] Section 236 of the ACL provides: “Action for damages 43 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 160 CLR 594. 44 Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) ATPR 40-135. 45 Fleming on Torts 10 th ed. 2011 page 122. 46 (1984) 156 CLR 41 at pp 96-97 per Mason J. 47 Bunnings Group Ltd v Chep Australia (2011) 82 NSWLR 420. -- 10 of 15 -- 11 (1) If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; The claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.” [58] Section 237 of the ACL provides: “Compensation orders etc. on application by an injured person or the regulator (1) A court may: (a) on application of a person (the injured person ) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that: (i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or (ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or (b) on the application of the regulator made on behalf of one or more such injured persons; make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct. Note 1: For applications for an order or orders under this subsection, see section 242. Note 2: The orders that the court may make include all or any of the orders set out in section 243. (2) The order must be an order that the court considers will: (a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons. (3) An application under subsection (1) may be made at any time within 6 years after the day on which: -- 11 of 15 -- 12 (a) if subsection (1)(a)(i) applies--the cause of action that relates to the conduct referred to in that subsection accrued; or (b) if subsection (1)(a)(ii) applies--the declaration referred to in that subsection is made.” [59] Section 243 provides: “Kinds of orders that may be made Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following: (a) an order declaring the whole or any part of a contract made between the respondent and a person (the injured person ) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract: (i) to be void; and (ii) if the court thinks fit--to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made); (b) an order: (i) varying such a contract or arrangement in such manner as is specified in the order; and (ii) if the court thinks fit--declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made); (c) an order refusing to enforce any or all of the provisions of such a contract or arrangement; (d) an order directing the respondent to refund money or return property to the injured person; (e) except if the order is to be made under section 239(1)--an order directing the respondent to pay the injured person the amount of the loss or damage; (f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person; (g) an order directing the respondent, at his or her own expense, to supply specified services to the injured person; -- 12 of 15 -- 13 (h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that: (i) varies, or has the effect of varying, the first mentioned instrument; or (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument.” [60] In terms of ACL damages, it was noted in Wardley Australia Ltd v Western Australia48 that in many cases the common law measure of damages will be the appropriate guide (i.e. an award to place the plaintiff in the same position that he or she would have been in had the wrong not been committed). [61] In cases involving misleading representations concerning the value of land the appropriate measure of damages is usually the difference between the true value of the land and the purchase price.49 This is usually assessed at the time of purchase. [62] It is also to be noted that section 237 of the ACL has been broadly interpreted.50 [63] With respect to the ACL remedy of rescission it was held that equitable principles provide safe guidance. For example, in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd51 rescission was refused where it was found restitutio in integrum was not possible. [64] In an action for negligence (for negligent misstatement) the damages must be foreseeable. Again, the order of damages is designed to put the plaintiff in the same position as if the wrong had not occurred.52 In Shaddock v Parramatta City Council53 this was assessed as the difference between the price paid for the land and the land as affected by road widening proposals together with consequential loss namely expenses which would not have been incurred had the respondent not been negligent. [65] Finally in an action for breach of fiduciary duty, equitable compensation is available. This “makes good” any loss.54 This is different from damages for negligence. [66] Contributing fault is irrelevant for the claims under the ACL and for breach of fiduciary duty.55 Conclusion [67] I cannot see how the plaintiff has a viable action concerning the failure to pay tax for three years or his claim concerning income protection insurance. The obligation fell on him as a tax payer to ensure his tax was up to date. 48 (1992) 175 CLR 514 and Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281. 49 Gould v Vaggelas (1984) 157 CLR 215. 50 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Ltd (2002) 210 CLR 109; [2002] HCA 41 at [25], [31], [54] and [57]. 51 (1988) 79 ALR 83. 52 Kyogle Shire Council v Francis (1988) 13 NSWLR 396. 53 (1981) 150 CLR 225. 54 Mackenzie v McDonald [1927] VLR 134. 55 Pilmer v Duke Group Ltd (in Liq) (2001) 207 CLR 165; [2001] HCA 31 at [74] and [86]. -- 13 of 15 -- 14 [68] There may be an action to recover the payments of late fees and penalties incurred by reason of the alleged negligence but this is not pleaded or particularised. [69] As to the income protection insurance, he has his rights to lodge amended taxation returns or to challenge the taxation assessments hence he can mitigate his loss. There is an obligation on a plaintiff to mitigate his or her loss.56 [70] I would not allow these claims in those circumstances. [71] I am satisfied on the unchallenged evidence that the plaintiff by reason of the misleading conduct of the first defendant entered into the contract to purchase the Broadbeach property. [72] I am not satisfied I should order rescission in this case bearing in mind the fact that resitutio in integrum is not possible. [73] I am satisfied that the following losses are recoverable under section 237 of the ACL and/or for breach of fiduciary duty: (a) Wasted fees concerning the development $20,000 (b) Stamp Duty $24,300.00 (c) Land Tax $10,702.05 (d) Legal Fees on purchase $876.25 (e) Legal Fees on sale $876.25 (f) Commission on sale $18,600.00 (g) Rates $6,270.28 (h) Interest payments $48,552.00 (i) Loss on sale $75,000 Totalling $205,176.83. [74] As to the action for conversion, the difficulty as I see it is that the money becomes the bank’s funds once deposited.57 I do not consider this action is made out. I consider the matter would have been better framed as a money claim. [75] I am also satisfied on the evidence that the first defendant should be ordered to repay the sum of $45,000.00 on the basis on money paid and owed. [76] Interest should be awarded in the sum of $11,950.23. This is from the date of the issue of proceedings until judgment (317 days) at the rate of 5.5% per annum.58 [77] In all of the circumstances I make the following orders: 56 See British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways [1912] AC 673. 57 R v Jell ex parte Attorney General [1991] 1 Qd R 48. 58 District Court Practice Direction number 6 of 2013. This is the RBA cash rate (1.5%) plus 4%. -- 14 of 15 -- 15 1. Damages on the Default Judgment against the First Defendant issued on 18 December 2018 are assessed in the sum of $250,176.83 plus interest in the sum of $11,950.23. 2. I order the first defendant pay the plaintiff’s costs of the action as agreed or assessed on the standard basis. -- 15 of 15 --