Tekin v Stratford

1. [1]

   MITCHELMORE JA: I agree with Adamson JA.

2. [2]

   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.

3. [3]

   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:

   1. (1)

      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);

   2. (2)

      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;

   3. (3)

      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;

   4. (4)

      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

   5. (5)

      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.

4. [4]

   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).

5. [5]

   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.

6. [6]

   However, the firm otherwise defended Mr Tekin’s claim on the following bases:

   1. (1)

      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

   2. (2)

      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.

7. [7]

   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.

8. [8]

   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]).

9. [9]

   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]).

10. [10]

    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]).

11. [11]

    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]).

12. [12]

    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.

13. [13]

    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:

14. [14]

    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.

15. [15]

    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]).

16. [16]

    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]).

17. [17]

    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]).

18. [18]

    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]).

19. [19]

    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:

20. [20]

    Mr Tekin’s evidence was that from December 2014 he had been looking at refinancing and, by 20 January 2015, he was discussing refinance and re-zoning with Mr Harsany. His “preferred option” at that time was “to obtain refinance, get re-zoning explored and then sell at the end of the finance period for more money”. He agreed that on 16 February 2015 he exchanged texts with Mr Harsany as follows:

21. [21]

    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”.

22. [22]

    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.

23. [23]

    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:

24. [24]

    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]).

25. [25]

    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]).

26. [26]

    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.

27. [27]

    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]).

28. [28]

    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]):

29. [29]

    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.

30. [30]

    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]).

31. [31]

    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).

32. [32]

    Mr Tekin deposed as to his belief as at late May 2015 as follows (extracted at J[123]):

33. [33]

    The primary judge addressed what Mr Tekin meant by the words “as quickly as possible” in the following paragraphs:

34. [34]

    In July 2015, Mr Tekin repaid the $300,000 deposit to Upside and the caveat was lifted.

35. [35]

    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.

36. [36]

    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:

37. [37]

    The primary judge found that Mr Tekin had, in the period after November 2015, dealt with “new solicitors and selling agents” as follows:

38. [38]

    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).

39. [39]

    The firm did not charge Mr Tekin for its work on the litigation and bore the cost of all disbursements.

40. [40]

    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]).

41. [41]

    The primary judge noted that Mr Tekin was the only witness who gave evidence in his case. His Honour accepted that Mr Tekin believed in the truth of his evidence. His Honour said (J[5]):

42. [42]

    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.

43. [43]

    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]).

44. [44]

    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:

    1. (1)

       he was not aware that he was legally free to sell the land; and

    2. (2)

       it was not reasonable for the firm to assume that Mr Tekin was aware that he was legally free to sell the land.

45. [45]

    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.

46. [46]

    Mr Tekin’s evidence as to his state of mind was extracted by the primary judge and reproduced at J[123] (extracted above).

47. [47]

    Mr Stratford’s evidence was that, after the Upside contract was at an end on 19 March 2015, he did not tell Mr Tekin that he could sell the land. When asked why he did not tell him, he said, “he probably never asked me”. Mr Stratford said, in the following exchange in his cross-examination:

48. [48]

    Mr Doherty deposed that Upside lodged a caveat on the land on 6 May 2015 and that a caveat had also been lodged by WRV. He also deposed that around this time Mr Tekin asked him what to do about the two caveats on the land, to which Mr Doherty answered that he had to pay them out. Mr Doherty was cross-examined about these answers and agreed that he did not tell Mr Tekin that one way of dealing with the caveats was to sell the land and pay out the caveats from the proceeds of sale. When asked why he did not give Mr Tekin that advice, he said that “Mr Tekin was taking his own steps to market the property”. This evidence formed the basis of ground 4 of appeal (see below).

The primary judge’s reasons

1. [49]

   The primary judge rejected Mr Tekin’s case that the firm had failed to advise him that he could sell the land. His Honour found that “it was no part of the [f]irm’s retainer to give Mr Tekin commercial advice about how to manage his finances or how to maximise his profit from his investment in the [l]and” (J[256]). His Honour continued:

2. [50]

   At J[262] the primary judge rejected Mr Tekin’s claim for damages on the following alternative finding:

3. [51]

   The primary judge’s reasons for that conclusion include the following:

The grounds of appeal

1. [52]

   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.

2. [53]

   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.

3. [54]

   I propose in my reasons to adopt the parties’ grouping of the grounds for the purposes of their submissions on the appeal.

Consideration

1. [55]

   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.

2. [56]

   In support of this submission, Ms Bampton relied on the following sequence of events:

   1. (1)

      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]);

   2. (2)

      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]);

   3. (3)

      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]);

   4. (4)

      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]);

   5. (5)

      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]);

   6. (6)

      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]);

   7. (7)

      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]);

   8. (8)

      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

   9. (9)

      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]).

3. [57]

   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.

4. [58]

   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.

5. [59]

   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.

6. [60]

   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]:

7. [61]

   Statements to similar effect are to be found in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ). These principles have been held to be particularly apposite when the hypothetical state of mind of a party (what that person would have done) is in issue: see the discussion in Takla v Nasr [2013] NSWCA 435 at [89] (McColl JA, Basten and Hoeben JJA agreeing). However, there is a rider to this principle in some cases of which the present may be an example. In Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55, McHugh J said, at fn 64 to [32], in the context of alleged failure to warn:

8. [62]

   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.”

9. [63]

   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.

10. [64]

    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.

11. [65]

    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.

12. [66]

    Ground 4 of the amended notice of appeal alleged:

13. [67]

    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”.

14. [68]

    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.

15. [69]

    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.

16. [70]

    For these reasons, the error alleged in ground 4 has not been made out.

17. [71]

    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.

18. [72]

    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.

19. [73]

    Ms Bampton submitted that, but for the firm’s negligence, Mr Tekin would have either:

    1. (1)

       pursued an offer of at least $10 million for the land; or

    2. (2)

       met the market, even if the market had indicated that the land was worth less than $10 million.

20. [74]

    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]:

21. [75]

    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).

22. [76]

    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:

23. [77]

    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:

    1. (1)

       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

    2. (2)

       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].

24. [78]

    Barrett AJA explained at [101] of Mal Owen:

25. [79]

    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.

26. [80]

    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.

27. [81]

    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.

28. [82]

    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.

29. [83]

    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).

30. [84]

    Section 5D of the Civil Liability Act sets out the general principles with respect to causation. Section 5D(3) provides:

31. [85]

    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.

32. [86]

    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.

33. [87]

    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.

34. [88]

    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 Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232 at [135]-[145] (Stern JA). As was said in Youyang Pty Ltd v Minter Ellison Morris Fletcher (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”.

35. [89]

    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.

36. [90]

    In these circumstances, the primary judge was correct to find that Mr Tekin had not discharged his onus of establishing causation.

37. [91]

    For these reasons, grounds 6-9 would not have been made out, even if grounds 1-5 had been made out.

Further matters

1. [92]

   It was not necessary for the primary judge to address the cap in the Professional Standards Scheme (the Scheme) which was created under the Professional Standards Act 1994 (NSW) as the judgment ordered fell within the cap. The parties addressed the construction and application of the Professional Standards Act. As this question does not arise, having regard to my view as to the appeal, a consideration of the interpretation of the Scheme ought await an appeal where such questions are not, as in the present case, hypothetical.

2. [93]

   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.

3. [94]

   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.

4. [95]

   There was a delay in preparing the appeal books which were ultimately served on the firm on 28 January 2026.

5. [96]

   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.

6. [97]

   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.

7. [98]

   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.

8. [99]

   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.

Proposed orders

1. [100]

   For the reasons given above, I propose the following orders:

   1. (1)

      Dismiss the appeal.

   2. (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.

2. [101]

   STERN JA: I agree with Adamson JA.