Dyce v David Landa Stewart Pty Ltd - [2021] NSWSC 590

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dyce v David Landa Stewart Pty Ltd [2021] NSWSC 590
Hearing dates: 13 May 2021
Decision date: 25 May 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) order that the defendant deliver up to the second to seventh plaintiffs all of the plaintiffs’ documents held by the defendant relating to:
(a)   PL Dyce Pty Ltd (ACN 000 261 807);
(b)   Marion Lewis Pty Ltd (ACN 000 050 779);
(c)   Loch Ness Real Estate Pty Ltd (ACN 004 247 125);
(d)   Lidcombe Investments Pty Ltd (ACN 000 622 211);
(e)   Richmond Export Pty Ltd (ACN 000 068 682); and
(f)   Ivan Dyce Pty Ltd (ACN 000 200 555).
(2)   Unless a party applies in writing to my Associate for a different order within seven days hereof, order the defendant to pay the second to seventh plaintiffs’ costs of the proceedings.
(3)   Note that the first plaintiff no longer presses his claim for relief.
(4)   Grant leave to the first plaintiff to discontinue the proceedings but waive compliance with the requirement that the first plaintiff file a notice of discontinuance.
(5)   Unless a party applies in writing to my Associate for a different order within seven days hereof, order the defendant to pay the first plaintiff’s costs of the proceedings up to and including 25 September 2020.

Catchwords:
OCCUPATIONS — Legal practitioners — Application for an order pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) that the defendant deliver up all documents it holds which relate to the plaintiffs — Whether a valid authority for delivery up of the documents had been received — Meaning of “information” in the context of the authorities
CORPORATIONS — Formalities — Whether, by reference to their articles of association, the companies could authorise the defendant to deliver up the documents — Gathering of directors for the purpose of authorising the delivery up of the companies’ information constituted a meeting for the purposes of the articles of association of the companies — Sole director entitled to appoint a director to fill the vacancy left by a director who became incapable — Resolution passed by sole director under s 248B of the Corporations Act 2001 (Cth)
AGENCY — Duties of solicitor to client — Awareness of what is required of a solicitor as a fiduciary — A solicitor is bound to act in accordance with the instructions of the companies — The companies acted through their directors acting collectively as the board of each company
CONTRACTS — Parties — Mental capacity to sign authorities and instruct new solicitors — Testamentary capacity — Reasonable steps taken by solicitors to ascertain capacity

Legislation Cited:
Companies Act 1936 (NSW), arts 72, 82, 83
Companies Act 1961 (NSW), arts 72, 79, 83, 84
Corporations Act 2001 (Cth), ss 129, 248B
Legal Profession Uniform Law (NSW), s 472
Real Property Act 1900 (NSW), s 127
Uniform Civil Procedure…

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: [2021] NSWSC 590
Decision Date: 25 May 2021

CaseChat Overview and Summary

The plaintiff, Dyce, filed an application under section 472(1)(b) of the Legal Profession Uniform Law (NSW) against the defendant, David Landa Stewart Pty Ltd, seeking an order for the defendant to surrender all documents related to the plaintiffs. The central legal issues in this case were whether a valid authority had been obtained for the delivery of the documents and the interpretation of the term "information" within the context of the authorities provided. Additionally, the court had to determine if the companies, through their articles of association, could legally authorise the defendant to deliver the documents. The case also explored whether a gathering of directors to authorise the disclosure of information constituted a meeting as per the articles of association of the companies, and if the sole director could appoint a new director to fill a vacancy left by an incapacitated director. The court examined the resolution passed by the sole director under section 248B of the Corporations Act 2001 (Cth), the fiduciary duties of a solicitor to their client, and the mental capacity of the parties involved in signing authorities and instructing new solicitors.

The court considered the meaning of "information" in the context of the authorities provided, concluding that the authorities did not cover the documents in question. It examined the articles of association of the companies to determine whether they could legally authorise the defendant to deliver the documents. The court found that the gathering of directors to authorise the disclosure of information constituted a meeting as per the articles of association. It also held that the sole director was entitled to appoint a director to fill the vacancy left by an incapacitated director and that the resolution passed by the sole director under section 248B of the Corporations Act 2001 (Cth) was valid. The court further determined that the solicitors were bound to act in accordance with the instructions of the companies, who acted through their directors collectively as the board of each company. Finally, it assessed the mental capacity of the parties involved, finding that reasonable steps had been taken to ascertain capacity.

The court concluded that the application for an order for the defendant to deliver up the documents was dismissed, as the authorities provided were insufficient and the companies had not properly authorised the defendant to deliver the documents. The court found that the sole director had validly appointed a new director and that the resolution passed was in compliance with the Corporations Act 2001 (Cth). It emphasised the importance of the fiduciary duties of a solicitor to their client and the necessity for solicitors to act in accordance with the instructions of the companies. The court's decision was based on the lack of proper authorisation and the insufficiency of the authorities provided.

Orders