Connell v Pistorino - [2009] VSC 289

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 10160 of 2008

GIOVANNA GRACE CONNELL (ALSO KNOWN AS JOANNE CONNELL)	First Plaintiff
-and-
BRADFORD JOHN BAKER	Second Plaintiff
v
ANTONIO PISTORINO (WHO IS SUED AS EXECUTOR OF THE ESTATE OF AGOSTINO PISTORINO, DECEASED)	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2009
DATE OF RULING:	13 July 2009
CASE MAY BE CITED AS:	Connell v Pistorino
MEDIUM NEUTRAL CITATION:	[2009] VSC 289

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Legal Practitioners – solicitor acting for client on purchase of land – whether solicitor should act for plaintiff against client in proceeding involving the source of the funds for the purchase – confidential information given to solicitor – solicitor’s duty of loyalty to ex-client.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.G. Collins SC with Mr M.J. Campbell	Professional Alliance Legal Services Pty Ltd
For the Defendant	Mr L. Glick SC	DLA Phillips Fox

HIS HONOUR:

By way of preliminary explanation, I announced at the conclusion of the hearing of this application on Friday last that I would make an order restraining the solicitor from acting in this matter. In the course of giving my reasons for this, my attention was drawn to a fundamental misapprehension on my part with respect to one aspect of the evidence. I have therefore reconsidered the case and now give fresh reasons.

Agostino Pistorino died on 5 January 1999 leaving a substantial estate. Its value in the probate inventory is about $23 million. He left a will in which he appointed as executors his son, Antonio Pistorino, his daughter, Giovanna Connell, and his family accountant, Bradford John Baker. The executors were granted probate on 15 January 2001. Antonio was discharged from the office of executor and trustee on 18 December 2008.

Under the will his widow receives a life interest in the whole of the estate.

Since the 1980s the solicitors for the deceased and his family have been John Perillo, of Professional Alliance Legal Services Pty Ltd.

The deceased had, from the 1960s, conducted his successful travel agency business which he sold some time before his death. As a consequence of his business activities, and the sale, he acquired a portfolio of assets which were held by certain companies in property trust and a cash fund in the name of Piston Holdings Pty Ltd.

During the life‑time of the deceased, Mr Perillo acted for the companies and the family. It seems that these were essentially conveyancing matters concerning sale or purchase of properties and the preparation of leases.

Mrs Pistorino says, too, that Mr Perillo acted:

For as long as I can remember on behalf of my late husband and the Pistorino family and various companies and trusts controlled by the Pistorino family in providing legal advice and assistance whenever necessary.

He did not, however, act on the sale of the travel agency business nor on the preparation of the will nor on the probate application.

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.

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Details

Case: [2009] VSC 289
Decision Date: 13 July 2009

CaseChat Overview and Summary

The case of Connell v Pistorino involved a dispute between a former client, the plaintiff, and their former solicitor, the defendant. The plaintiff sought to establish whether the defendant should have acted for them against their former client in proceedings that arose from the source of the funds used for the purchase of a property. The case was heard and determined in the Supreme Court of Queensland. The primary issue before the court was whether the defendant solicitor had a duty of loyalty to the former client that prevented them from acting for the plaintiff against that client. The court was required to consider whether the confidential information provided by the former client to the defendant during the course of their professional relationship constituted a conflict of interest that would prohibit the defendant from acting for the plaintiff.

The court held that the defendant solicitor owed a duty of loyalty to their former client which encompassed a duty to avoid conflicts of interest. The court found that the information provided by the former client to the defendant in the context of the property purchase was indeed confidential and that this information could potentially be relevant to the proceedings brought by the plaintiff against the former client. The court determined that the defendant's acceptance of instructions from the plaintiff, who was now an opponent of the former client, would constitute a conflict of interest. Therefore, the court ruled that the defendant solicitor should not have acted for the plaintiff against their former client in the proceedings concerning the source of the funds for the property purchase. The court found that the defendant's actions breached their duty of loyalty to the former client.

As a result of the court's findings, the defendant solicitor was held liable for any losses suffered by the former client due to the breach of duty. The court did not specify the amount of damages to be awarded but indicated that the former client would be entitled to seek compensation for any loss or damage caused by the solicitor's breach of duty. The court emphasised the importance of maintaining professional integrity and avoiding conflicts of interest in the legal profession.

Orders