| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 9137 of 2005
| Dennis Hanger Pty Ltd (ACN 006 036 031) | Plaintiff / Respondent |
| v | |
| Linda Brown and Ors | Defendant / Applicant |
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JUDGE: | Warren CJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2007 | |
DATE OF JUDGMENT: | 30 November 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 495 | |
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LEGAL PRACTITIONERS – Solicitors – conflict of interest – application to restrain solicitors – solicitors acted for plaintiff and defendant in prior matter – disclosure of confidential information – delay
REAL PROPERTY – Transfer of Land Act 1958 (Vic) – application for removal of caveat – misappropriated funds - constructive trust – tracing – whether funds can be traced to mortgage debt payments – serious question to be tried as to interest – balance of convenience favours maintaining caveat
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr MW Shand QC with Mr RBC Wilson | Wilmoth Field Warne |
| For the first Defendant | Ms CM Kenny | Robert M Phelan & Co Pty |
HER HONOUR:
Before this court is the first defendant’s summons seeking orders that:
§ the plaintiff be restrained from retaining, and from continuing to retain, Wilmoth Field Warne (WFW) as its solicitors in this proceeding;
§ the plaintiff withdraw a caveat over particular property; and
§ the plaintiff pay the first defendant’s costs of, and incidental to, the application.
The first two orders sought are somewhat interrelated. However, I will deal with each in turn.
Application to restrain retaining WFW
The first defendant is a former employee of the plaintiff.
The first defendant submits that WFW acted on behalf of the first defendant in a previous matter which was in relation to a complaint lodged by a former employee of the plaintiff in the Equal Opportunity Commission against the first defendant, the plaintiff and a related company (the EOC matter).
The first defendant submits that the EOC matter raised issues, or required the investigation of issues, which relate to the allegations of fraud raised against the first defendant in this proceeding.
The EOC matter involved a complaint lodged by another former employee of the plaintiff, Ms W, who alleged that she had been sexually harassed in the course of employment. The complaint was brought against the first defendant, the plaintiff and a related company. It alleged sexual harassment as a result of statements allegedly made by the first defendant about Ms W to third parties. The complaint, and the investigation of it, seems to have touched on broader issues which included allegations of improper acts by the first defendant in the course of employment and allegations as to her character.
WFW acted for the first defendant and the plaintiff in the course of the investigation, conciliation and ultimate dismissal settlement and discontinuance of the complaint.
The first defendant submits that there are three bases to grant an injunction to restrain a solicitor from acting against a former client:
(a) to prevent the misuse of confidential information obtained by the…
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- Case
- [2007] VSC 495
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the defendants had a conflict of interest that precluded them from acting as solicitors in the separate matter. The court was also required to decide whether the funds used to lodge the caveat had been misappropriated and were held on a constructive trust, and whether the balance of convenience favoured maintaining the caveat. The court needed to assess whether the funds could be traced to mortgage debt payments, and whether there was a serious question to be tried as to the defendants' interest in the property.
The court found that the defendants had a conflict of interest and restrained them from acting as solicitors in the separate matter. The court also found that the funds used to lodge the caveat had been misappropriated and were held on a constructive trust, and that the balance of convenience favoured maintaining the caveat. The court held that the funds could not be traced to mortgage debt payments, and that there was a serious question to be tried as to the defendants' interest in the property. The court ordered that the caveat be maintained, and that the defendants be restrained from acting as solicitors in the separate matter.
The court ordered that the defendants be restrained from acting as solicitors in the separate matter, and that the caveat over the property be maintained. The court also ordered that the defendants pay the plaintiff's costs of the application.
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