McVeigh v Linen House Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 4963 of 1999

DEAN ROYSTON MCVEIGH and

COLIN RAYMOND McDONALD Appellants
v
LINEN HOUSE PTY. LTD. and
RUGS GALORE AUSTRALIA PTY. LTD. and ORS. Respondents

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APPLICATIONS ON SUMMONS

JUDGES: CALLAWAY and BATT, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 3 September 1999
DATE OF JUDGMENT: 3 September 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 138

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LEGAL PRACTITIONERS – Duty of loyalty – Acting for party against former clients in respect of very transaction and period in which they had acted for latter – Court of Appeal's jurisdiction to restrain practitioners from acting in appeal – Present client's passive attitude to appeal no answer.

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APPEARANCES: Counsel Solicitors
For the Appellants  Mr. P.R. Hayes, Q.C. Deacons Graham &
and Mr. I.D. Martindale James
For the 1st Respondent  Mr. D.H. Denton Rosendorff Lawyers
For the 2nd, 3rd, 4th and 5th  Mr. R.M. Garratt, Q.C. Wisewoulds
Respondents  and Mr. P.D. Crutchfield
For the 6th Respondent  No appearance

CALLAWAY, J.A.:

  1. On 11 June 1999 a summons was filed in this proceeding on behalf of Dean Royston McVeigh and Colin McDonald. The summons sought a stay of orders made by Gillard, J. on 4 June 1999. Further orders ancillary to the proposed stay were also sought. Two of them reflected ancillary orders that Gillard, J. had made in connexion with stays granted by him. The other was to the effect that the appellants "shall disburse", which we take to mean shall not disburse, any funds made available in accordance with the terms of the relevant deed of company arrangement other than in the payment of legal expenses reasonably incurred by them.

  2. The hearing of that summons was twice adjourned by consent. It is apparent that none of the parties represented before us this morning is in a position to argue it. It also appears that each of the parties desires a stay. There is at present in force a stay granted by Gillard, J. which will expire on 10 September 1999. Our disposition of the summons will not prevent the parties, or any of them, making such application to his Honour as they or it may think fit.

  3. In the circumstances I have briefly described, none of the parties opposes refusal of the relief sought in paragraphs 1 and 2 of the summons. The only other relief sought is for expedition. That application is replicated in another summons that is before us. Accordingly the order of the Court is that the applications made in paragraphs 1 and 2 of the summons filed on behalf of Dean Royston McVeigh and Colin McDonald on 11 June 1999 be refused.

    (At a later stage):

CALLAWAY, J.A.:

  1. Earlier this morning the Court dealt with a summons filed in this proceeding on 11 June 1999. There is also before us a summons filed on behalf of the appellants on 25 August 1999. The respondents to the second summons are the respondents to the appeal, namely, Linen House Pty Ltd…

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Details
Case
[1999] VSCA 138
Decision Date

CaseChat Overview and Summary

The case before the court was a dispute between McVeigh and Linen House Pty Ltd. McVeigh sought to restrain the legal practitioners, who were acting for Linen House, from appearing in the appeal. The practitioners had previously acted for McVeigh in relation to the same transaction and period in which they were now acting for Linen House. The court was required to determine whether it had the jurisdiction to restrain the practitioners from acting in the appeal, notwithstanding Linen House's passive attitude towards the appeal. The court held that the practitioners' conduct amounted to a breach of their duty of loyalty to McVeigh, and that the court did have the jurisdiction to restrain them from appearing in the appeal. The practitioners' previous representation of McVeigh in relation to the same transaction and period gave rise to a conflict of interest, and their failure to obtain McVeigh's informed consent to act for Linen House amounted to a breach of their duty of loyalty. The court held that the practitioners' conduct was such that it was necessary to restrain them from appearing in the appeal in order to protect the integrity of the legal profession and to maintain public confidence in the administration of justice. The court held that Linen House's passive attitude towards the appeal did not affect the court's jurisdiction in the matter. The court made an order restraining the practitioners from appearing in the appeal.

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