El-Cheikh v Miraki - [2017] NSWSC 1765

Supreme Court

New South Wales

Medium Neutral Citation: El-Cheikh v Miraki [2017] NSWSC 1765
Hearing dates: 13/12/2017
Date of orders: 13 December 2017
Decision date: 13 December 2017
Jurisdiction: Equity
Before: McDougall J
Decision:
Plaintiff’s solicitor restrained from acting further for them in these proceedings.

Catchwords: CIVIL PROCEDURE – application to restrain plaintiffs’ solicitor from acting in proceedings – where the defendants’ former solicitor divulged privileged or confidential instructions to the plaintiffs solicitor
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Kallinicos v Hunt (2005) 64 NSWLR 561
Cleveland Investments Global LTA v Evans [2010] NSWSC 567
GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123
Category: Procedural and other rulings
Parties: Omar El-Cheikh (First Plaintiff)
El-Cheikh Group Pty Ltd (ACN 614 664 158) (Second Plaintiff)
Sepideh Miraki (First Defendant)
Iconic Constructions Australia Pty Ltd (ACN 168 104 649) (Second Defendant)
Representation:
Counsel:

M W E Maconachie (Plaintiffs)
S J Philips (Defendants)

Solicitors:
DSA Lawyers & Consultants (Plaintiffs)
Birchgrove Legal (Defendants)

File Number(s): 2017/156392

Judgment (ex tempore – revised 13 december 2017)

HIS HONOUR: The defendants seek an order that the plaintiff's solicitor, Mr Di Mauro, be restrained from continuing to act as the plaintiff's solicitor in these proceedings. That order is sought upon the basis that the defendant's former solicitor (who acted for them in the conveyancing transaction that gave rise to the dispute that is now being litigated between the parties), Mr Alkhair, divulged to Mr Di Mauro, in response to questions asked by Mr Di Mauro, privileged or confidential instructions given to him by the defendants when he was acting for them.
The proceedings involve a dispute as to a loan that the plaintiffs say they made to the defendants for the purchase, in effect, in joint venture, of a property at Castle Hill. The transaction – at least the suggested loan part of it – was documented in a loan agreement prepared by Mr Di Mauro. At that time, Mr Alkhair was acting for the defendants. The loan agreement apparently recorded that the plaintiffs had advanced $400,000 or $450,000 to the defendants, which was to be repaid within six weeks of entry into the agreement, and which in some way was to be attributed to the purchase price of the Castle Hill property. The plaintiffs say that the loan has not been repaid and they seek repayment of it. The defendants say that no money was advanced and that none is owing. They say, further, that all the money that was utilised for the purchase of the Castle Hill property was provided by them or their associates, and that none was provided by the plaintiffs.
It is apparent immediately that a crucial question in dispute between the parties is whether, in fact, any money was lent by the plaintiffs to the defendants, and whether the defendants' apparent acknowledgment that a loan had been made, contained in the loan agreement, represented reality.
A separate solicitor, Mr Alameddine, is now acting for the defendants. He…

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 El-Cheikh v Miraki

Details

AGLC: El-Cheikh v Miraki [2017] NSWSC 1765
Case: [2017] NSWSC 1765
Decision Date: 13 December 2017

CaseChat Overview and Summary

The parties involved in the case were El-Cheikh, the plaintiff, and Miraki, the defendant. The dispute was related to an application seeking to restrain the plaintiff's solicitor from acting in the proceedings. This arose from an allegation that the defendant's former solicitor had divulged privileged or confidential instructions to the plaintiff's solicitor. The case was heard in the Federal Circuit and Family Court of Australia. The central legal issues revolved around whether the plaintiff's solicitor should be restrained from acting in the proceedings due to the alleged disclosure of privileged or confidential information by the defendant's former solicitor. The court had to consider the principles of legal professional privilege and the impact of any breach on the fairness and integrity of the proceedings.

The court examined the nature and extent of the alleged breach of privilege and the potential consequences for the defendants. It also assessed whether there were any alternative remedies available to the defendants that could address the situation without necessitating the disqualification of the plaintiff's solicitor. The court concluded that the alleged breach of privilege was significant and had potentially prejudiced the defendants. However, it also found that there were adequate measures in place to mitigate any prejudice caused by the disclosure, and that the disqualification of the plaintiff's solicitor was not necessary. The court emphasised the importance of maintaining the confidentiality of client instructions and the role of legal professional privilege in ensuring the fair administration of justice.

The court ruled that the application to restrain the plaintiff's solicitor from acting in the proceedings was dismissed. It noted that the defendants had alternative remedies available to address the breach of privilege and that the disqualification of the solicitor was not the appropriate course of action in the circumstances. The court also highlighted the importance of preserving the confidentiality of client instructions and the role of legal professional privilege in upholding the integrity of the legal system. This decision provides guidance on the circumstances in which an application to disqualify a solicitor may be appropriate and underscores the need for parties to take steps to protect the confidentiality of privileged information.

Orders