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Annor v Howard

Annor v Howard

Case [2023] NSWSC 1084 8 September 2023

Implied Retainer

Conflict of Interest

Professional Responsibility Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Annor v Howard [2023] NSWSC 1084
Hearing dates: 11 August 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Jurisdiction: Equity
Before: Robb J
Decision:
The orders of the Court are:
(1) Order that the notice of motion filed by the first defendant on 23 November 2022 be dismissed.
(2) Order the first defendant to pay the plaintiff’s costs of the notice of motion.

Catchwords:
OCCUPATIONS — legal practitioners — solicitors — application for order restraining respondent’s solicitors from acting in proceedings — where respondent’s solicitors engaged in contractual negotiations with third parties in relation to recording contract for applicant — where applicant contends that respondent’s solicitors implicitly retained by him, and acted on his behalf — where no implicit retainer found — where factual matrix does not support finding that a fair-minded reasonably informed member of the public would perceive that justice was not seen to be done if respondent’s solicitor permitted to continue acting

Cases Cited:
Ausmedic Australia Pty Ltd v Whiteley Medical Supplies Pty Ltd [2012] NSWSC 1270
Cleveland Investments Global Ltd v Evans [2010] NSWSC 567
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160
Westpac Banking Corporation v Newey [2013] NSWSC 533

Category: Procedural rulings
Parties: Daniel Annor (Plaintiff/Respondent)
Charlton Kenneth Jeffrey Howard (First Defendant/Applicant)
Sloane Marie Howard (Second Defendant)
Representation:
Counsel:
M Kearney (Plaintiff/Respondent)
AB Gotting (First Defendant/Applicant)
Solicitors:
Media Arts Lawyers (Plaintiff/Respondent)
Laxon Lex Lawyers (First Defendant/Applicant)

File Number(s): 2022/00153410
Publication restriction: Nil

JUDGMENT

The defendant in these proceedings is Charlton Kenneth Jeffrey Howard, who is a musical artist who performs under the name "The Kid Laroi". By notice of motion filed on 23 November 2022, Mr Howard seeks an order that the solicitors for the plaintiff/cross defendant, who practice as the incorporated legal practice Media Arts Lawyers Pty Ltd (MAL), be restrained from acting for the plaintiff/cross defendant in these proceedings. The respondents to the notice of motion are MAL and David Vodicka, one of its solicitors. The plaintiff/cross defendant in the proceedings is Daniel Annor, who was appointed as Mr Howard's manager under a management agreement made on 11 January 2018.
In Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 (Cleveland Investments), Ward J (as her Honour then was) identified the three possible bases upon which a solicitor may be restrained from acting against a former client, at [37] as follows:

[37] The authorities in this area have explored three possible bases upon which a solicitor may be restrained from acting against a former client:
First, that of ensuring the protection of confidential information that has been provided by the client to the lawyer in the course of the lawyer/client relationship: see, for example, Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831; D & J Constructions; Carindale Country Club Estate Pty Ltd v Astill (1993)…

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.

Continue reading Annor v Howard

Details

AGLC: Annor v Howard [2023] NSWSC 1084
Case: [2023] NSWSC 1084
Decision Date: 08 September 2023

CaseChat Overview and Summary

Annor v Howard is a case before the Supreme Court of Victoria, where the applicant, Mr Annor, sought an order restraining the respondent, Mr Howard, and his solicitors from acting in proceedings in relation to a recording contract. Mr Annor contended that Mr Howard’s solicitors were implicitly retained by him and acted on his behalf in contractual negotiations with third parties. The court was required to determine whether Mr Howard's solicitors could continue to act for him in the proceedings and whether there was an implicit retainer that would prevent the solicitors from doing so.

The primary legal issue was whether the solicitors were under an implicit retainer by Mr Annor, which would prevent them from acting for Mr Howard. The court examined the factual matrix of the case, including the communications between the parties and the nature of the relationship between Mr Annor and Mr Howard’s solicitors. The court had to assess whether a fair-minded reasonably informed member of the public would perceive that justice was not seen to be done if Mr Howard’s solicitors were permitted to continue acting.

The court found that there was no evidence to support the claim of an implicit retainer. The factual matrix did not support the finding that a fair-minded reasonably informed member of the public would perceive that justice was not seen to be done if Mr Howard’s solicitors continued to act in the proceedings. The court considered the communications between the parties and the nature of the relationship, concluding that the solicitors were not implicitly retained by Mr Annor. The court dismissed the application, finding that there was no basis for restraining Mr Howard’s solicitors from acting in the proceedings.

Orders