Legal Research
Cases
ACN 092 675 164 Pty Ltd v Suckling

ACN 092 675 164 Pty Ltd v Suckling

Link copied

Case Copied 19 October 2018 39 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2017 00146

IN THE MATTER OF ACN 092 675 164 PTY LTD (IN LIQUIDATION) (ACN 092 675 164) (FORMERLY KNOWN AS NATIONAL BUILDERS GROUP PTY LTD) ACN 092 675 164 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS NATIONAL BUILDERS GROUP PTY LTD)	First Plaintiff
RICHARD TRYGVE ROHRT IN HIS CAPACITY AS LIQUIDATOR OF ACN 092 675 164 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS NATIONAL BUILDERS GROUP PTY LTD)	Second Plaintiff
v
MATTHEW SUCKLING IN HIS CAPACITY AS EXECUTOR OF THE DECEASED ESTATE OF BARRY SUCKLING	First Defendant
ROBERT CANTAMAGLIA	Second Defendant

---

JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2018
DATE OF RULING:	19 October 2018
CASE MAY BE CITED AS:	ACN 092 675 164 Pty Ltd v Suckling
MEDIUM NEUTRAL CITATION:	[2018] VSC 620

---

LEGAL PRACTITIONERS — Application to restrain solicitor from acting against former corporate client — Whether solicitor should be restrained in the interests of the administration of justice — Whether there is a continuing duty of loyalty that prevents a solicitor acting against former clients in the same or related matter — Whether there is a difference in substance between relief sought on the administration of justice ground and the duty of loyalty ground — Relevance of the possibility that a solicitor may be a witness considered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	D H Denton QC with J J Rudd	Nerlich Lawyers
For the First Defendant	A P Rodbard-Bean	GZP Legal
For the Second Defendant	No appearance	-

HIS HONOUR:

By summons dated 1 August 2018, the plaintiffs apply for an order that, pursuant to the inherent jurisdiction of this Court, the first defendant’s solicitors, GPZ Legal, and a partner at that firm, Nick Galatas, be restrained from acting for the first defendant in this proceeding.

For the reasons given below, I consider that GZP Legal and Mr Galatas should not be restrained from continuing to act for the first defendant in this proceeding.

The proceeding

The second plaintiff (‘the Liquidator’) is the liquidator of the first plaintiff (‘the Company’), which was placed into liquidation on 21 March 2012.

The first defendant is the executor of the deceased estate of Barry Suckling, who was a director of the Company at all material times prior to the liquidation. The second defendant was a director of the Company from 13 July 2009 to 19 December 2011.

By originating process filed on 16 June 2017, the plaintiffs seek declarations and orders pursuant to s 588M(2) of the Corporations Act 2001 (Cth) that the defendants each pay to the Liquidator an amount equal to the debts incurred by the Company after it allegedly became insolvent.

By their amended statement of claim filed 21 September 2018, the plaintiffs allege as follows:

(a) The Company was insolvent from 31 May 2011.

(b) There were reasonable grounds to suspect that the Company was insolvent from that date, on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ACN 092 675 164 Pty Ltd v Suckling and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 620
Decision Date: 19 October 2018

CaseChat Overview and Summary

The case of ACN 092 675 164 Pty Ltd v Suckling involved a corporation seeking to restrain a solicitor from acting against them in proceedings before the court. The dispute centred on whether the solicitor, who had previously represented the corporation, could be restrained from representing an opposing party in the same or a related matter. The matter was heard in the Federal Court of Australia.

The legal issues that the court had to address included whether there exists a continuing duty of loyalty that prevents a solicitor from acting against a former client in the same or a related matter. The court also had to consider whether there is a difference in substance between relief sought on the ground of the administration of justice and the duty of loyalty ground. Additionally, the possibility that a solicitor may be a witness in the proceedings was examined in the context of the application.

The court examined the principles of legal ethics and the role of solicitors in the administration of justice. It concluded that while there is a continuing duty of loyalty, it does not extend to preventing a solicitor from acting against a former client in all circumstances. The court found that the relief sought on the ground of the administration of justice and the duty of loyalty ground was essentially the same. The potential for the solicitor to be a witness was considered, but it did not alter the outcome of the case.

The court dismissed the application to restrain the solicitor from acting against the former client. The corporation was ordered to pay the costs of the proceeding.

Orders