LCM Litigation Fund Pty Ltd v Coope - [2016] NSWSC 1221

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: LCM Litigation Fund Pty Ltd v Coope [2016] NSWSC 1221
Hearing dates: 15 – 16 and 28 June 2016
Date of orders: 01 September 2016
Decision date: 01 September 2016
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Order that the plaintiff’s Amended Summons and Amended Statement of Charge be dismissed.
(2) Order that the plaintiff pay the defendant’s costs of the proceedings.
(3) Order that the exhibits and any documents produced on subpoena or notice to produce may be returned forthwith in accordance with the Rules.

Catchwords: CONTEMPT OF COURT – construction of undertaking – defendant gave an undertaking to court of non-solicitation of clients – plaintiff alleges that the defendant breached his undertaking by communicating with the plaintiff’s clients – whether the word “client” in the undertaking was intended to have its ordinary meaning or the meaning as defined in the employment agreement – consideration of undertaking as a whole – held the term was intended to have its ordinary meaning – held Mr Duncan was not a client of the plaintiff but Mr Farnsworth was – whether the defendant’s communication with Mr Farnsworth involved solicitation – held email communications with Mr Farnsworth constituted a solicitation – whether the defendant had direct dealings with Mr Farnsworth – held the defendant did not have direct dealings with Mr Farnsworth whilst working for the plaintiff – held plaintiff failed to establish beyond reasonable doubt that the undertaking was breached – held plaintiff’s amended summons and amended statement of charge be dismissed
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Australasian Meat Industry Employees Union and Others v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Barrett v Ecco Personnel Pty Ltd [1998] NSWCA 30
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Vic) Pty Ltd [2014] VSCA 261
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94
NE Perry Pty Ltd v Judge [2002] SASC 312; (2002) 84 SASR 86
National Australia Bank Ltd v Juric [2001] VSC 375
Pang v Byland Holdings Pty Ltd [2011] NSWCA 69
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Wysenko v Wysenko [2012] NSWSC 732
1st Available v Melocco [2016] NSWSC 30
Category: Principal judgment
Parties: LCM Litigation Fund Pty Ltd (plaintiff)
Patrick Mark Coope (defendant)
Representation:
Counsel: AJ Sullivan QC/T O’Brien (plaintiff)
Y Shariff/V Bulut (defendant)
Solicitors: Piper Alderman (plaintiff)
Esplin (defendant)

File Number(s): 2015/359582
Publication restriction: None

Judgment

Introduction

By amended summons filed on 15 April 2016, the plaintiff, LCM Litigation Fund Pty Ltd (LCM), seeks a declaration that the defendant, Mr Patrick Mark Coope, is guilty of contempt of court in respect of an undertaking given by Mr Coope to the court on 24 June 2015, together with consequential…

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: [2016] NSWSC 1221
Decision Date: 01 September 2016

CaseChat Overview and Summary

LCM Litigation Fund Pty Ltd, as the plaintiff, brought an action against Coope, the defendant, in the Supreme Court of Queensland. The plaintiff alleged that the defendant had breached a non-solicitation undertaking given to the court by communicating with the plaintiff's clients, specifically Mr Duncan and Mr Farnsworth. The central issue before the court was the interpretation of the term "client" in the undertaking and whether the defendant's communications with Mr Farnsworth constituted a solicitation of clients. The court needed to determine whether the term "client" in the undertaking was intended to have its ordinary meaning or the specific meaning defined in the employment agreement between the plaintiff and the defendant.

The court considered the undertaking as a whole and concluded that the term "client" was intended to have its ordinary meaning. The court found that Mr Duncan was not a client of the plaintiff, but Mr Farnsworth was. Regarding the defendant's communications with Mr Farnsworth, the court held that the email communications did constitute a solicitation of clients. However, the court also found that the defendant did not have direct dealings with Mr Farnsworth while working for the plaintiff. Therefore, the court held that the plaintiff failed to establish beyond reasonable doubt that the undertaking was breached. The court dismissed the plaintiff's amended summons and amended statement of charge, finding that the defendant did not breach the undertaking.

In dismissing the plaintiff's claims, the court highlighted the importance of interpreting the terms of an undertaking in their ordinary meaning unless the context clearly suggests otherwise. The court also noted that the plaintiff's failure to prove the breach of the undertaking beyond reasonable doubt was a significant factor in its decision. The dismissal of the summons and the statement of charge meant that the defendant was not found in contempt of court and that the plaintiff's allegations were not substantiated by the evidence presented.

Orders