WINNIFRED WAI YUE YU v ALLAN NI KWAN KWOK & ORS. [1999] NSWSC 992

WINNIFRED WAI YUE YU v ALLAN NI KWAN KWOK & ORS. [1999] NSWSC 992

Defendants owed a duty of care to the plaintiff to advise (inform) her about the nature and investment risk of the proposed deposit with BCC, and breached that duty by failing to do so prior to investing plaintiff's funds. Plaintiff would not have consented to the investment with BCC had she been informed, and suffered loss as a result. Plaintiff's damages are to be reduced by 15% due to her contributory negligence in failing to make inquiries about the investment. Defendants acted honestly but not reasonably and are not entitled to relief under the Trustee Act. No breach of trust under Trustee Act occurred because the relationship and course of dealings did not confine investments to...

Jurisdiction
Australia
Judgment Date
02 September 1999
Procedural Posture
Civil / Judgment After Trial
Outcome
Judgment for the plaintiff; damages and costs to be determined following further submissions or agreement.
Legal Topics
['conversion' 'fiduciary Duty' 'negligence' 'duty of Care' 'contributory Negligence' 'breach of Trust' 'trustee Act 1925' 'measure of Damages']
['equity' 'tort' 'trusts'] ['conversion' 'fiduciary Duty' 'negligence' 'duty of Care' 'contributory Negligence' 'breach of Trust' 'trustee Act 1925' 'measure of Damages']

Case Brief

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Procedural Posture

Civil / Judgment After Trial

Legal Issues

  1. 1 ["Whether defendants, in depositing cheques contrary to plaintiff's instructions, committed conversion and/or breached fiduciary duty or duty of care;" 'Whether defendants owed and breached a duty of care in failing to advise about the nature and risk of investment;' 'Whether plaintiff contributed to her loss (contributory negligence);' 'Whether breach of trust occurred under Trustee Act 1925 and entitlement to relief;' 'Measure of damages for breach.']

Ratio Decidendi

Defendants owed a duty of care to the plaintiff to advise (inform) her about the nature and investment risk of the proposed deposit with BCC, and breached that duty by failing to do so prior to investing plaintiff's funds. Plaintiff would not have consented to the investment with BCC had she been informed, and suffered loss as a result. Plaintiff's damages are to be reduced by 15% due to her contributory negligence in failing to make inquiries about the investment. Defendants acted honestly but not reasonably and are not entitled to relief under the Trustee Act. No breach of trust under Trustee Act occurred because the relationship and course of dealings did not confine investments to...

Court Disposition

Judgment for the plaintiff; damages and costs to be determined following further submissions or agreement.

Orders

  • ['Plaintiff entitled to damages and interest for breach of duty of care by defendants, subject to 15% reduction for contributory negligence.' 'Court to hear further argument or evidence as to quantum of damages and applicable interest rate.' 'Costs in favour of plaintiff.']