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McVeigh v Linen House Pty Ltd

McVeigh v Linen House Pty Ltd

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Case Copied 3 September 1999 16 min read

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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.:

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.
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.
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.:

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…

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: [1999] VSCA 138
Decision Date: 3 September 1999

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.

Orders