Lee v MK Trading Co Aust Pty Ltd - [2021] VSC 343

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2020 03612

JON WEE LEE	First Plaintiff
and
SIAK KONG CHI	Second Plaintiff
v
MK TRADING COMPANY AUSTRALIA PTY LTD (ACN 133 773 832) as trustee for the GCM HYBRID UNIT TRUST	First Defendant
and
KYLE WING HENG LAM	Second Defendant

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2021
DATE OF JUDGMENT:	16 June 2021
CASE MAY BE CITED AS:	Lee & Anor v MK Trading Co Aust Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 343

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LEGAL PRACTITIONERS — Application by defendants to restrain solicitor from acting for plaintiffs in the proceeding — Where solicitor (sole principal of the firm) was personally involved in some of the business activities the subject of the proceeding and has asserted a financial interest in the subject matter of the proceeding — Where solicitor might be a witness in the proceeding — Where defendants allege the solicitor has made threats to harm the second defendant and his family — Inherent jurisdiction of the Court to restrain solicitor from acting if it is in the interests of justice to do so — Relevant test to be applied — Whether fair-minded, reasonably informed member of the public would conclude that proper administration of justice requires that solicitor be restrained

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs and Cliffords Lawyers & Migration Agents	Mr D J Williams AM QC and Mr C J Twidale	Fumens Lawyers
For the Defendants	Mr J Evans QC and Mr P R Miller	Madgwicks Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Affidavit material relied upon........................................................................................................ 3

Involvement of Clifford Qwah....................................................................................................... 4

Plaintiffs elect to appoint a new solicitor...................................................................................... 5

Hearing of the defendants’ application......................................................................................... 7

Summary of submissions made on behalf of the defendants................................................. 8
Restraint of solicitor from acting to protect the administration of justice................... 8
Mr Qwah is likely to be called as a witness in the proceeding........................ 9
Mr Qwah has asserted a personal financial interest in the business conducting the Gong Cha stores the subject of the proceeding................................. 9
Threats of harm made by Mr Qwah.................................................................. 10

Summary of submissions made on behalf of the plaintiffs................................................... 11
Response from the defendants.................................................................................................. 14
Response from the plaintiffs...................................................................................................... 15

Consideration and disposition of the case.................................................................................. 15

Conclusion......................................................................................................................................... 20

HER HONOUR:

Introduction

By summons filed on 30 April 2021, addressed to the plaintiffs and their then solicitor, Cliffords Lawyers & Migration Agents (Cliffords), the defendants seek relief by way of an order restraining the firm ‘from acting for, working for, aiding or otherwise assisting any of the plaintiffs in relation to, or otherwise in connection with, this proceeding.’

In advance of the hearing, by letter dated 19 May 2021, the defendants’ solicitor notified the plaintiffs’ solicitor that they were modifying the form of restraint sought, so as to cater for the possible involvement of the principal of Cliffords, Mr Clifford Qwah, as a witness in the…

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] VSC 343
Decision Date: 16 June 2021

CaseChat Overview and Summary

In Lee v MK Trading Co Aust Pty Ltd, the defendants sought an order to restrain the plaintiff's solicitor from acting in the proceedings. The defendants alleged that the solicitor, who was the sole principal of the firm, had been personally involved in some of the business activities that were the subject of the litigation. They further claimed that the solicitor had asserted a financial interest in the subject matter of the proceeding and could be a witness. Additionally, the defendants alleged that the solicitor had made threats to harm one of the defendants and his family.

The court was required to determine whether it had the inherent jurisdiction to restrain the solicitor from acting if it was in the interests of justice to do so. The court considered the relevant test, which was whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the solicitor to be restrained. The court noted that the inherent jurisdiction of the court was not to be exercised lightly and that it was only appropriate in cases where there was a real risk of a substantial miscarriage of justice.

The court held that it did have the inherent jurisdiction to restrain the solicitor from acting in the proceeding. It found that the defendants had made out a case where a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the solicitor to be restrained. The court found that the solicitor's personal involvement in some of the business activities, the assertion of a financial interest, and the alleged threats made by the solicitor to one of the defendants and his family, created a real risk of a substantial miscarriage of justice. The court made an order restraining the solicitor from acting in the proceeding.

Orders