Solicitors’ Date-Calculation Negligence and Undisclosed Profit from Client Refinance: When does a Defective Notice to Complete Cause Compensable Loss, and when must Equity strip a law firm’s benefit despite “no dishonesty”?

Based on the authentic Australian judicial case Tekin v Stratford & Ors [2025] NSWSC 541, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales, Common Law Division :contentReference[oaicite:0]{index=0}
Presiding Judge: Faulkner J :contentReference[oaicite:1]{index=1}
Cause of Action: Professional negligence (solicitor’s services); breach of fiduciary duty and constructive trust allegations concerning receipt of monetary benefits; interest and costs :contentReference[oaicite:2]{index=2}
Judgment Date: 29 May 2025 :contentReference[oaicite:3]{index=3}
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Notice to Complete
Keyword 3: Causation and counterfactual
Keyword 4: Penalty doctrine and deposits
Keyword 5: Fiduciary conflict and informed consent
Keyword 6: Equitable compensation and compound interest

Background

The Plaintiff was a long-standing property investor and developer who retained a small firm of solicitors to act on a contract for the sale of development land. The sale did not complete on time. The firm issued a Notice to Complete and later a termination notice. A purchaser dispute and litigation followed, spanning years. Meanwhile, the Plaintiff refinanced to manage cashflow pressures created by the dispute and ongoing debt exposure. The core friction was not simply that the solicitors made an error; it was whether that error caused the Plaintiff to suffer a legally compensable loss, and whether the firm, having continued to act while conflicted, had to disgorge monetary benefits obtained from the refinance drawdown even if the Plaintiff ultimately succeeded in the purchaser litigation. :contentReference[oaicite:4]{index=4}

Core Disputes and Claims

1. Negligence and loss: The Plaintiff alleged the firm negligently drafted and served a Notice to Complete, triggering later termination complications and exposing the Plaintiff to purchaser proceedings. The Court had to determine what loss, if any, was caused by that negligence under the counterfactual analysis mandated by the Civil Liability Act 2002 (NSW) approach to factual causation. :contentReference[oaicite:5]{index=5}
2. Penalty and “lost deposit” theories: The Plaintiff advanced a loss theory involving an unpaid instalment of the “deposit” under the contract. The Court had to decide whether that instalment was truly a deposit or, in substance, a penalty with no recoverable value. :contentReference[oaicite:6]{index=6}
3. Fiduciary conflict and continuing retainer: After the defect became apparent and the purchaser dispute crystallised, the firm continued to act. The Court had to decide what fiduciary consequences flowed from acting while conflicted, and whether any loss was proven from that conflict beyond the negligence damages. :contentReference[oaicite:7]{index=7}
4. Undisclosed monetary benefits from refinance: The Plaintiff alleged the firm obtained benefits from loan drawdown funds in circumstances of conflict or possible conflict and without fully informed consent, so that Equity required an account and equitable compensation (including interest). :contentReference[oaicite:8]{index=8}

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Chapter 2: Origin of the Case

Content

The narrative begins long before the dispute: the Plaintiff had a decades-long relationship with the firm, relying on it for property transactions. That history created both convenience and vulnerability: routine trust can blur the point where a client expects only legal work and where a solicitor’s influence might feel broader than the retainer truly allows. :contentReference[oaicite:9]{index=9}

The Plaintiff owned four contiguous parcels of development land and, after earlier development plans stalled, decided to sell the land as a single lot. A contract was exchanged with a purchaser company for AUD $7.8 million, with a side deed allowing both parties to market for a higher third-party sale before completion, reflecting a commercial mindset: the Plaintiff wanted a high price, and the purchaser wanted optionality. :contentReference[oaicite:10]{index=10}

The contract had an accelerated completion date and special conditions governing a Notice to Complete and a “deposit by instalments” structure. AUD $300,000 was paid early and released to the Plaintiff; the balance of AUD $480,000 was expressed to be payable either on termination by the vendor or on completion. The machinery mattered: if the purchaser did not comply in an essential respect, the vendor could terminate and keep or recover the deposit up to 10%. :contentReference[oaicite:11]{index=11}

When completion did not occur, the firm issued a Notice to Complete that did not comply with the contract’s 14-day requirement and was issued while the Plaintiff was not fully ready on requisitions. The defect was not a drafting nicety; it altered the legal effectiveness of later termination steps. :contentReference[oaicite:12]{index=12}

The decisive moment came when the Plaintiff, wanting to exit a deal perceived as underpriced and fearing being locked into it, instructed termination. The purchaser responded aggressively, alleging invalid notice, repudiation, and foreshadowing proceedings and demands affecting the Plaintiff’s ability to deal with the land proceeds. :contentReference[oaicite:13]{index=13}

The litigation risk then created cashflow pressure. The Plaintiff refinanced with a lender. At drawdown, funds were applied in part to items the Plaintiff later queried, including amounts that benefited the firm and were not transparently explained at the time. This is where the dispute shifted from “a mistake” to “who benefited, and was that permitted while conflicted?”. :contentReference[oaicite:14]{index=14}

Detail Reconstruction

Relationship formation: A long solicitor–client relationship, with the solicitor conducting many property transactions over decades, created habitual reliance and less rigorous billing practices. :contentReference[oaicite:15]{index=15}
Financial interweaving: The Plaintiff was under significant debt pressure during development difficulties and later litigation threats. The contract structure and deposit release were designed to manage immediate liabilities. :contentReference[oaicite:16]{index=16}
Gradual emergence of conflict: When the defect surfaced and the purchaser threatened proceedings, the firm faced a structural tension: the client needed independent advice about rights, exposure, and potential claims against the firm, while the firm had an interest in controlling reputational and liability consequences. :contentReference[oaicite:17]{index=17}

Conflict Foreshadowing

The story’s legal heartbeat is a familiar one in Australian litigation: once a professional error is identified, the most dangerous period is often what follows. A client under stress wants stability; the professional wants to fix the problem; and without careful conflict management, the retainer can transform into a fiduciary hazard. The Court’s later focus on causation and benefits shows that a “good outcome” in downstream litigation does not erase upstream duties.

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Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Contract documentation: The contract, side deed, special conditions for deposit instalments, termination rights, and Notice to Complete provisions were central to what the Notice had to achieve and what legal leverage the Plaintiff would have had on a proper counterfactual. :contentReference[oaicite:18]{index=18}
2. Correspondence trail: Emails and letters around completion delays, purchaser finance issues, and the post-termination dispute formed the objective record against which later recollections were tested. :contentReference[oaicite:19]{index=19}
3. Evidence of the Notice defect and consequences: The Plaintiff’s case relied on the defect as the trigger for the purchaser’s repudiation arguments and the need to repay the AUD $300,000 deposit. :contentReference[oaicite:20]{index=20}
4. Refinance drawdown records and later accounting: The Plaintiff relied on documents produced later by the firm about how funds were applied, arguing the firm received benefits without fully informed consent while conflicted. :contentReference[oaicite:21]{index=21}

Respondent’s Main Evidence and Arguments

1. Admitted negligence but contested loss: The firm did not seriously dispute that the Notice was negligently drafted; it contested whether the negligence caused the losses claimed, requiring strict counterfactual analysis. :contentReference[oaicite:22]{index=22}
2. Penalty doctrine defence to “lost deposit instalment”: The firm argued the unpaid AUD $480,000 instalment was not a true deposit and would have been unrecoverable as a penalty, meaning there was no compensable loss of that claimed right. :contentReference[oaicite:23]{index=23}
3. No dishonesty finding required: The firm resisted allegations of dishonest motive and emphasised that the legal question was fiduciary breach and accounting, not moral condemnation. :contentReference[oaicite:24]{index=24}
4. Interest and remedies: The firm addressed whether interest should be simple or compound and what rates should apply.

Core Dispute Points

1. Counterfactual: If the Notice to Complete had been valid and issued when the Plaintiff was not in breach, what would have happened, and what legal entitlements would the Plaintiff likely have exercised? :contentReference[oaicite:25]{index=25}
2. Deposit characterisation: Was the AUD $480,000 instalment a “true deposit” capable of forfeiture, or a penalty with no value? :contentReference[oaicite:26]{index=26}
3. Causation boundaries: Even if negligence occurred, was the claimed loss too remote or not factually caused under the statutory test? :contentReference[oaicite:27]{index=27}
4. Fiduciary accounting: Did the firm obtain monetary benefits while acting with conflict or possible conflict without fully informed consent, requiring disgorgement and equitable compensation? :contentReference[oaicite:28]{index=28}

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Chapter 4: Statements in Affidavits

Content

Affidavits do not simply list facts; they construct a chronology designed to make the judge see inevitability. Here, the Court explicitly treated memory with caution where events were a decade old and preferred objective contemporaneous documents when recollections diverged. The Plaintiff’s affidavit evidence contained concessions about imperfect historical recall, which the Court accepted as honest but unreliable in parts; the solicitors’ file notes and transaction documents provided a firmer frame. :contentReference[oaicite:29]{index=29}

A typical strategic divide in affidavit drafting appeared:

• The Plaintiff’s affidavits emphasised personal understanding and reliance: the felt constraint of not being able to sell, the sense of being pushed into refinance, and the “real world” burden of ongoing debt and litigation threat.
• The firm’s affidavits and documents emphasised retainer boundaries and objective steps: what the contract required, what was done, what was recorded, and what would likely have happened on a proper notice.

The Court’s treatment shows a core lesson: in causation disputes, a party’s later statement about what they “would have done” is structurally vulnerable, particularly where legislation restricts admissibility of self-serving counterfactual statements and where objective evidence reveals shifting intentions over time.

Strategic Intent

The Judge’s procedural emphasis on credit and documentary preference reflects why courts direct parties to crystallise affidavit evidence early and tie each allegation to contemporaneous documents. That discipline exposes whether a claim is anchored in objective proof or rests on a reconstructed narrative produced after the damages theory is known.

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Chapter 5: Court Orders

Content

Before final orders, the matter required the Court to manage:

• Pleadings that evolved over years and lacked clarity in parts, particularly around causation theories and the architecture of the fiduciary claims. :contentReference[oaicite:30]{index=30}
• A trial structure that effectively grouped claims into “complaints” for analytical clarity, separating negligence loss, selling-advice theories, refinance direction theories, receipt of benefits, and continuing to act while conflicted. :contentReference[oaicite:31]{index=31}

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Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Perspective: Strict, objective Third-Party Perspective

Process Reconstruction: Live Restoration

The hearing pivoted on credibility and on whether the Court accepted that the Plaintiff’s later understanding aligned with what objectively happened. The Court observed that a truthful witness can still be wrong about details years later; the decisive method is to test recollections against documents, and to treat “binary” retrospective explanations of intent as too blunt for the nuanced commercial reality. :contentReference[oaicite:32]{index=32}

Cross-examination pressure points included:

1. The Plaintiff’s intentions from time to time: Did the Plaintiff truly want to sell in 2015, or did he want to hold for rezoning and a higher price? This mattered because “what would have happened” cannot be answered in the abstract; it depends on the Plaintiff’s real commercial posture at each moment. :contentReference[oaicite:33]{index=33}
2. The firm’s motives: Allegations that the firm manipulated the Plaintiff to prevent evidence of land value and to extract refinance profits were tested. The Court accepted denials, relying on the impression from cross-examination and objective implausibility of the alleged “larger scheme”. :contentReference[oaicite:34]{index=34}
3. The accounting for refinance funds: The Court treated unexplained or reconstructed invoicing and unexplained disbursements with scepticism, and placed the burden on the fiduciary recipient to explain where the money went.

Core Evidence Confrontation

The decisive documentary battleground was not a dramatic confession; it was a chain:

• Contract provisions defining a compliant Notice to Complete and deposit structure. :contentReference[oaicite:35]{index=35}
• Objective evidence that the Notice served was defective and that the Plaintiff was then exposed to repudiation allegations. :contentReference[oaicite:36]{index=36}
• Evidence that the purchaser litigation ultimately failed for reasons including inability to prove willingness and ability to complete, and absence of loss because market value findings undercut damages. :contentReference[oaicite:37]{index=37}
• Refinance drawdown evidence showing the firm received monetary benefits while acting on the refinance transaction, a context in which undivided loyalty and informed consent requirements are strict. :contentReference[oaicite:38]{index=38}

Judicial Reasoning: How facts drove the result

The Court’s reasoning turned on separating three concepts that ordinary readers often blend:

1. Negligence can be admitted, but loss is not automatic. Statutory causation demands a disciplined counterfactual. :contentReference[oaicite:39]{index=39}
2. Even where a contract uses the label “deposit”, Equity and common law ask what the payment really is; a mischaracterised “deposit” may be a penalty with no recoverable value. :contentReference[oaicite:40]{index=40}
3. Fiduciary breach is not about proving dishonesty; it is about conflict and unauthorised gain. When a fiduciary obtains a benefit in conflict circumstances without fully informed consent, Equity’s remedial focus is to remove the benefit, often with interest calibrated to ensure the wrongdoer does not retain time-value gains.

Judicial Original Quotation Principle (Anonymised quotation preserving the Court’s ratio content)

“It is a case where there is no dispute that some negligence occurred and no serious dispute that thereafter the Firm had a conflict of interest yet continued to act. The real issues in the proceedings are questions of causation of loss and receipt of monetary benefits by the Firm when acting under a conflict.” :contentReference[oaicite:41]{index=41}

This statement is determinative because it frames the litigation correctly: the trial was not an ethical inquest, but an evidentiary and remedial exercise. The Court identified the two real engines of outcome: statutory causation for negligence loss, and fiduciary accounting for benefits.

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Chapter 7: Final Judgment of the Court

Content

The Court made final orders awarding negligence damages and ordering equitable compensation, with interest and costs:

• Judgment for damages of AUD $300,000. :contentReference[oaicite:42]{index=42}
• Interest under s 100 of the Civil Procedure Act 2005 (NSW) on the damages sum from 17 July 2015. :contentReference[oaicite:43]{index=43}
• An order that the firm pay equitable compensation of AUD $127,398.17. :contentReference[oaicite:44]{index=44}
• An order that the firm pay compound interest on the equitable compensation calculated at yearly rests from 17 July 2015 at prescribed rates. :contentReference[oaicite:45]{index=45}
• An order that the Defendants pay the Plaintiff’s costs, with liberty to apply within 14 days for alternative or additional costs orders. :contentReference[oaicite:46]{index=46}

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Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case is jurisprudentially valuable because it illustrates a disciplined boundary between:

• Compensable negligence loss, which requires proof of causation and value of the lost right; and
• Fiduciary remedies, which focus on stripping unauthorised benefits and can operate even where dishonesty is not proven.

It also shows why “winning the downstream litigation” does not cancel the upstream fiduciary problem: conflict management and informed consent are obligations, not optional ethics.

Judgment Points

1. A defective Notice to Complete can be negligence, but the Court will still ask: what is the counterfactual world if reasonable care had been used, and would the claimed loss actually have been avoided? :contentReference[oaicite:47]{index=47}
2. A payment labelled “deposit” may still be a penalty if its timing and function cannot satisfy the “earnest money” concept; if so, the vendor’s claimed right may have “no value” and cannot be a loss. :contentReference[oaicite:48]{index=48}
3. A fiduciary duty is constrained by the retainer: loyalty does not enlarge the scope of work into general commercial advice unless the facts support that the duty truly operated in that field. :contentReference[oaicite:49]{index=49}
4. Disclosure and informed consent are not assumed: where a fiduciary seeks to retain a benefit, the fiduciary bears the onus to prove fully informed consent. :contentReference[oaicite:50]{index=50}
5. Compound interest can be ordered in equity to prevent retention of benefit and to reflect the financing reality created by the benefit’s extraction from loan funds. :contentReference[oaicite:51]{index=51}

Legal Basis

Key statutory and doctrinal anchors include:

• Civil Liability Act 2002 (NSW) provisions on negligence and causation, including factual causation as a necessary condition and the statutory structure for determining causation and onus. :contentReference[oaicite:52]{index=52}
• Civil Procedure Act 2005 (NSW) s 100 as the basis for interest orders on judgment sums. :contentReference[oaicite:53]{index=53}
• Fiduciary principle against unauthorised profit in conflict circumstances, stated in authorities such as Pilmer v Duke Group (in liq) and Chan v Zacharia, and applied to solicitor conduct on refinance work. :contentReference[oaicite:54]{index=54}
• Equity’s approach to interest, including circumstances where compound interest is appropriate to ensure the fiduciary does not retain the benefit’s time value. :contentReference[oaicite:55]{index=55}

Evidence Chain

The Court’s “Conclusion = Evidence + Statutory Provisions” logic can be seen through eight victory points:

1. Victory Point 1: Admitted negligence is only the gateway, not the destination

The firm’s negligence in drafting and issuing the Notice to Complete was not disputed; the Court described what a competent solicitor would have done: ensure compliance with the contract’s minimum notice period and avoid issuing a notice while the client was in breach on requisitions. :contentReference[oaicite:56]{index=56}
The practical message: in professional negligence litigation, admission of breach of duty does not determine damages. The plaintiff must still prove causation and quantifiable loss.

1. Victory Point 2: Counterfactual discipline prevents speculative damages

The Court insisted on careful counterfactual analysis: what would have occurred had reasonable care been exercised, including the timing of a valid time-of-the-essence completion date and the purchaser’s likely failure to complete. :contentReference[oaicite:57]{index=57}
This is the difference between an intuitive story and a legally provable chain. The plaintiff’s success depends on aligning the story with what objective evidence shows would probably have happened.

1. Victory Point 3: The penalty doctrine can eliminate the value of a “right”

The plaintiff sought to characterise the unpaid AUD $480,000 instalment as part of a forfeitable deposit. The Court analysed the characteristics of a “true deposit” and held that an obligation to pay on termination or completion could not serve the earnest-money function; it followed that the instalment was not a deposit, the obligation was void as a penalty, and the vendor’s entitlement had no value. :contentReference[oaicite:58]{index=58}
For lay readers, the metaphor is simple: you cannot call something a “refundable bond” and then design it to be payable only after the deal has already ended; at that point it is not a bond showing commitment, it is a punishment lever, and the law may refuse to enforce it.

1. Victory Point 4: Courts distrust hindsight “I would have sued” narratives

Even if a right exists, a plaintiff must prove they would have pursued it and would probably have obtained value. Where legislation constrains admissibility of self-serving hypothetical statements, objective proof becomes crucial. The Court’s approach underscores why contemporaneous actions and documents matter more than later reconstructions. :contentReference[oaicite:59]{index=59}

1. Victory Point 5: Fiduciary conflict is assessed by structure, not emotions

The Court treated the firm’s continuing role in defending proceedings caused by its own negligence as a classic conflict or significant possibility of conflict, such that the plaintiff was entitled to independent advice, without needing expert evidence about professional conduct rules to reach that conclusion. :contentReference[oaicite:60]{index=60}
For practitioners, this is the operational warning: once a claim against the solicitor is reasonably in contemplation, continuing to act demands strict conflict protocols, including independent advice pathways and transparent documentation.

1. Victory Point 6: Disgorgement does not require dishonesty

The Court held the evidence fell short of proving dishonesty under the Evidence Act standard for serious allegations, yet still found breach of fiduciary duty requiring remedial response concerning the refinance drawdown benefits. :contentReference[oaicite:61]{index=61}
Equity is not waiting for a “bad person” finding; it is preventing a conflicted fiduciary from keeping an unauthorised gain.

1. Victory Point 7: The onus of fully informed consent sits on the fiduciary

In solicitor-client contexts, disclosure sufficient for fully informed consent must cover material circumstances that might influence the client. The Court found the firm did not discharge the onus of proving fully informed consent for receipt of the payments. :contentReference[oaicite:62]{index=62}
This is why vague verbal explanations are risky: if challenged years later, the solicitor must prove what was disclosed, when, and that the client understood it sufficiently to consent.

1. Victory Point 8: Compound interest is an equity tool to neutralise benefit retention

The Court ordered compound interest on equitable compensation at yearly rests from 17 July 2015, explaining that the breach fairly answered the description of money withheld or misapplied by a fiduciary and that compounding better ensured the firm did not retain the benefit, especially where the payment increased the client’s borrowing exposure. :contentReference[oaicite:63]{index=63}
In real-life terms: if the benefit came out of borrowed money, simple interest may under-correct the advantage; compounding can be the Court’s way of matching the economic reality.

Judicial Original Quotation Principle

“The facts in this case warrant an order for interest to be paid on a compound basis… Compound interest will better ensure that the Firm does not retain the benefit… In all the circumstances the Firm is to be ordered to pay interest on the equitable compensation… compounded at annual rests.” :contentReference[oaicite:64]{index=64}

This quotation is determinative because it explains why equity moved beyond a bare repayment order: the remedy was structured to eliminate the time-value advantage of holding the benefit, reflecting a preventative and restorative function rather than punishment.

Analysis of the Losing Party’s Failure

The unsuccessful parts of the Plaintiff’s broader narrative failed for predictable litigation reasons:

1. Overreach on causation: alleging enormous opportunity-loss damages without sufficiently anchoring counterfactual behaviour in objective evidence. The Court treated shifting intentions about selling, rezoning ambitions, and market hopes as inconsistent with a clean “but for” story. :contentReference[oaicite:65]{index=65}
2. Mischaracterisation of the AUD $480,000 instalment: the law does not enforce penalty-like deposit structures merely because the contract uses deposit language. Once the instalment was found not to be a deposit, the claimed “lost right” collapsed in value. :contentReference[oaicite:66]{index=66}
3. Insufficient proof of dishonesty: serious allegations require cogent evidence; the Court did not find the required standard met, even while still granting fiduciary remedies for unauthorised benefit retention. :contentReference[oaicite:67]{index=67}
4. Retainer-scope constraints: fiduciary duty did not automatically expand into broad commercial advice unless the retainer and factual matrix supported it, limiting some “selling advice” theories. :contentReference[oaicite:68]{index=68}

Implications

1. If your solicitor makes an error, the next step matters as much as the mistake: ask, in writing, whether you should obtain independent advice, and whether any conflict exists. Conflicts tend to be determined by structure, not by whether anyone “meant well”.
2. If you are chasing damages, build your story on documents, not on memory. Courts respect honesty but rely on objective records, especially where a decade has passed. :contentReference[oaicite:69]{index=69}
3. A contract label is not a magic spell. Calling a payment a deposit does not guarantee it can be forfeited; the law looks to substance, timing, and function. :contentReference[oaicite:70]{index=70}
4. Equity can protect you even where dishonesty is not proven. If a fiduciary gains a benefit in conflict circumstances without fully informed consent, the Court can order repayment and interest designed to strip the advantage. :contentReference[oaicite:71]{index=71}
5. Litigation resilience is built early: document instructions, preserve emails, demand itemised explanations for any money taken from loan proceeds, and do not assume “it will be fine” is a legal strategy.

Q&A Session

Q1: If the purchaser litigation was ultimately dismissed, why did the Plaintiff still recover AUD $300,000 as damages?
A: Because negligence damages depend on the loss caused by the negligent step, not solely on the ultimate outcome of related litigation. The Court accepted some loss was caused by negligence even though broader claimed losses were not proven. :contentReference[oaicite:72]{index=72}

Q2: Why could the Plaintiff not recover the AUD $480,000 “deposit instalment”?
A: Because the Court analysed the payment’s substance and timing and concluded it did not function as a true deposit. It followed that the obligation was void as a penalty and the vendor’s entitlement had no value, defeating compensable loss on that head. :contentReference[oaicite:73]{index=73}

Q3: If dishonesty was not proven, why did the firm still have to pay equitable compensation and compound interest?
A: Because fiduciary remedies focus on unauthorised gain obtained in conflict circumstances without fully informed consent. The Court found a breach of fiduciary duty occurred and ordered equitable compensation to remove the benefit, with compound interest to prevent retention of time-value advantage. :contentReference[oaicite:74]{index=74}

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Solicitors’ Professional Negligence and Fiduciary Accounting Dispute arising from property sale contract termination and refinance drawdown benefits :contentReference[oaicite:75]{index=75}
Judgment Nature Definition: Final Judgment (principal judgment with final orders on damages, equitable compensation, interest, and costs) :contentReference[oaicite:76]{index=76}

2. Self-examination of Core Statutory Elements

This case belongs to Category ⑨ Civil Litigation and Dispute Resolution.

Core Test Standards (for reference only; outcomes tend to be determined by the precise evidence, pleadings, and statutory context in each case):

1. Limitation Period

– Identify the cause of action date for negligence and fiduciary breach.
– Determine the applicable limitation regime, including when loss was first suffered or discoverable, and whether any extension provisions might apply.
– Risk note: limitation questions tend to be fact-sensitive; early legal advice is relatively high value where events span many years.

1. Jurisdiction and Proper Forum

– Confirm the court’s jurisdiction to determine negligence claims and equitable remedies in the same proceeding.
– Ensure claims are properly framed within the court’s civil jurisdiction and that any cross-claims or third-party issues are raised in time.
– Risk note: jurisdictional and procedural missteps tend to be determined strictly and can derail otherwise strong merits.

1. Pleadings Clarity and Causation Architecture

– Plead duty, breach, causation, and loss distinctly for negligence, including the counterfactual.
– For fiduciary claims, plead the conflict, the unauthorised gain, absence of fully informed consent, and the remedy sought (account, equitable compensation, interest).
– Risk note: unclear pleadings tend to be determined adversely because they prevent the Court from mapping “Conclusion = Evidence + Law” cleanly. :contentReference[oaicite:77]{index=77}

1. Discovery and Disclosure Duties

– Identify all contemporaneous documents: file notes, emails, contract versions, lender settlement statements, trust ledger entries, invoices, and counsel briefs.
– Ensure disclosure is complete and timely, especially where the other party is the document-holder (often the case in professional negligence and fiduciary accounting disputes).
– Risk note: missing documents tend to be determined against the party who should reasonably have had them, particularly where explanations are thin.

1. Remedies Mapping

– Negligence: damages aim to restore the plaintiff to the position they would likely have been in absent negligence, subject to statutory causation.
– Fiduciary breach: remedies aim to strip unauthorised benefits and can include equitable compensation and interest calibrated to prevent retention of advantage.
– Risk note: remedy selection tends to be determined by the nature of the wrong and the evidentiary ability to quantify loss versus benefit.

3. Equitable Remedies and Alternative Claims

Because statutory and common law routes can fail on causation or value, equity can provide alternative pathways in appropriate cases. These are not guaranteed; outcomes tend to be determined by proof of each element.

1. Equitable Compensation for Breach of Fiduciary Duty

– Identify the fiduciary relationship: solicitor–client in provision of professional legal services.
– Identify the conflict or possible conflict: continuing to act while exposed to claims or while receiving benefits from client transaction funds.
– Identify the benefit: money received or retained, or money applied without authorisation or informed consent.
– Show absence of fully informed consent: disclosure must be conscientious and sufficiently detailed to allow an informed decision; the fiduciary bears the onus. :contentReference[oaicite:78]{index=78}
– Remedy: equitable compensation assessed to remove the benefit and restore the client’s position, potentially with interest.

1. Account of Profits / Constructive Trust Framing

– Where a fiduciary obtains a benefit in conflict circumstances, equity can treat it as held on constructive trust in the sense that fiduciary is amenable to trustee-like remedies, including account and compensation.
– Practical use: where the client struggles to prove consequential loss, focusing on the fiduciary’s gain can be a more reliable evidentiary route.

1. Procedural Fairness within the Civil Process

– Even in private law disputes, procedural fairness principles operate through pleadings, disclosure, and trial conduct.
– A party can “counter-attack” by seeking orders compelling production of accounting documents, trust ledger records, and contemporaneous billing communications.
– Risk note: applications tend to be determined by proportionality, relevance, and whether the request is properly particularised.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds (commonly encountered in civil disputes; not exhaustive):

• Limitation periods: strict time bars can apply, and delay can be fatal unless an extension regime is available.
• Causation thresholds: negligence claims require proof that breach was a necessary condition of harm and that the harm is not merely speculative. :contentReference[oaicite:79]{index=79}
• Proof thresholds for serious allegations: dishonesty allegations tend to be determined under stricter evidentiary scrutiny; failure to meet that standard does not necessarily defeat fiduciary remedies but can affect costs and credibility findings. :contentReference[oaicite:80]{index=80}

Exceptional Channels (often crucial):

• If primary negligence loss claims falter on counterfactual speculation, fiduciary accounting remedies may still be available where a concrete benefit was received and not authorised.
• If documentary evidence is held by the opposing party, courts may grant targeted disclosure and inspection orders; success tends to be determined by precision and relevance of the categories sought.

Suggestion:

Do not abandon a potential claim simply because parts of your damages theory are uncertain. In complex disputes, the strongest path can shift from “what I lost” to “what you gained” if that gain can be proven and is unauthorised.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite this case in submissions involving:

• Causation and counterfactual analysis for admitted professional negligence
• The penalty doctrine applied to “deposit by instalments” structures
• Fiduciary conflict consequences for solicitors continuing to act
• Fully informed consent burdens and equitable compensation with compound interest :contentReference[oaicite:81]{index=81}

Citation Method:

######As Positive Support:
– Where your matter involves a solicitor’s admitted error but disputed loss, cite Tekin v Stratford & Ors [2025] NSWSC 541 to reinforce the need for disciplined counterfactual proof and objective evidence preference.
– Where a fiduciary received money from a client transaction without fully informed consent, cite it to support disgorgement and interest designed to strip time-value advantage.

######As a Distinguishing Reference:
– If the opposing party cites this case to argue “no loss,” emphasise factual uniqueness: whether your alleged right had real value, whether the payment structure functioned as a true deposit, and whether your evidence of counterfactual conduct is supported by contemporaneous documents rather than recollection.

Anonymisation Rule:

When discussing the reasoning in publications, use procedural titles such as Plaintiff and Defendants, and refer to the solicitors collectively as the Firm.

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Conclusion

Tekin v Stratford & Ors [2025] NSWSC 541 shows how Australian courts separate a proven mistake from a proven loss, and how Equity can require a conflicted fiduciary to give back what was taken even where dishonesty is not established. The golden lesson is this: the law rewards disciplined proof, not moral outrage.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Tekin v Stratford & Ors [2025] NSWSC 541), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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