Parin v Q Group WA Pty Ltd - [2025] WASC 346

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PARIN -v- Q GROUP WA PTY LTD [2025] WASC 346
CORAM:   HOWARD J
HEARD:   21 AUGUST 2025
DELIVERED          :   21 AUGUST 2025
PUBLISHED           :   26 AUGUST 2025
FILE NO/S:   CIV 2073 of 2018
BETWEEN:   DAVID VICTOR PARIN
First Plaintiff
AND
EDGE INVESTMENTS (WA) PTY LTD
Second Plaintiff
AND
Q GROUP WA PTY LTD
First Defendant
AND
MAREMA NOMINEES PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Application to restrain the first defendant from instructing its solicitors - Where the plaintiffs assert that the solicitors for the first defendant have an interest in the outcome of the matter - Application dismissed

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	A Rumsley
Second Plaintiff	:	A Rumsley
First Defendant	:	C Horwood
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Alan Rumsley
Second Plaintiff	:	Alan Rumsley
First Defendant	:	Jacobson & Associates
Second Defendant	:	No appearance

Cases referred to in decision(s):

Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372
Dimension Agriculture Pty Ltd v Nicoletti [2025] WASCA 287
Edge Investments WA Pty Ltd v Q Group WA Pty Ltd [2024] WASAT 9
Edge Investments WA Pty Ltd v Q Group WA Pty Ltd [2024] WASAT 9 (S)
Finch v The Heat Group Pty Ltd (No. 2) [2016] FCA 791; (2016) 353 ALR 193
Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Thorpe v Lochel [2005] WASCA 85; (2005) 31 WAR 500
Tottle Christensen v Westgold Resources NL [2003] WASCA 224

HOWARD J:

(This judgment was delivered extemporaneously on 21 August 2025 and has been lightly edited from the transcript).

By a Summons filed 25 June 2025, the plaintiff seeks an injunction restraining Jacobson & Associates from acting as lawyers for the first defendant, Q Group (WA) Pty Ltd (Q Group), in these proceedings.
For the purposes of today, it appears to be common ground that:
1.the plaintiffs entered into a lump sum building contract with Q Group in September 2017;
2.by May 2018, the parties were in dispute; and
3.the contract was terminated in June 2018.
These proceedings were commenced by writ issued 25 June 2018, and the statement of claim was filed on 9 September 2018.
Q Group was initially represented by another firm of solicitors.
On 24 April 2020, Jacobson & Associates filed a notice of change of representation in these proceedings and gave notice that they were representing Q Group. That remains the case.
Related proceedings were commenced by the plaintiffs, it appears, in early 2022 by lodging a complaint with the Building Commissioner, pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
That complaint was referred to the State Administrative Tribunal (SAT) and:
1.became the subject of proceedings in the SAT, being matter CC 62 of 2022;
2.was the subject of a decision on 23 February 2024 in Edge Investments WA Pty Ltd v Q Group WA Pty Ltd [2024] WASAT 9; and
3.was the subject of a decision on costs published in that matter on 11 July 2024 which was [2024] WASAT 9 (S).[1]
[1] Edge Investments WA Pty Ltd v Q Group WA Pty Ltd [2024] WASAT 9 (S).
On 13 June 2022, the plaintiffs in this court in these proceedings filed a Chamber Summons for summary judgment on admissions. That was heard and dismissed by Master Sanderson on 17 November 2022.
The current pleadings are:
1.a further amended substituted statement of claim filed 6 August 2024;
2.an amended statement of defence to the further amended substituted statement of claim filed 25 March 2025;
3.a re-amended statement of counterclaim filed 25 March 2025;
4.a third amended defence to re-amended statement of counterclaim filed 7 May 2025; and
5.a second amended reply to further further re-amended defence and defence to amended statement of counterclaim filed 5 November 2024.
Even that short history should raise concerns as to the progress of this matter and the proportionality of resources that has been allocated to it. Such concerns are in no way assuaged by the comparatively small claims which are presently, apparently, in dispute between the parties, and I say 'comparatively' having regard to the usual quantum of commercial disputes in this court.
On 24 June 2025, a Registrar made orders further varying orders which they had made in November 2024 to program witness outlines and the filing of a book of documents after any disputes with them had been identified. It appears that those orders have been pushed out on at least two occasions since initially being made in November 2024.
From the Court file, it appears that neither the plaintiff nor Q Group has complied with the extended deadline ordered on 24 June 2025 to file their witness outlines by 31 July 2025.
It appears that the question of restraining Jacobson & Associates from acting for Q Group was first raised in September or October 2024.

The injunction application

I have raised with counsel for the plaintiffs whether the injunction application is, as a matter of substance, really to be taken as being brought against Q Group and seeking that it be restrained from using Jacobson & Associates as its lawyers. Counsel for the plaintiffs disagrees with the premise of that question. In any event, I have not decided this application on the basis of any misjoinder.
The injunction application is supported by two affidavits of the first plaintiff, David Victor Parin, one made 18 February 2020, and another made 25 June 2025 and filed 27 June 2025. Except for one objection, which I upheld, those affidavits are taken as read.
The first defendant opposes the injunction sought and relies on the affidavit of Jonathan Hilton Jacobson, solicitor, made and filed 21 July 2025.
The application is put on the following basis:
[4]The application is brought on the basis that the solicitors for Q Group have an interest in relation to the outcome of a matter the subject of the counterclaim, where the first defendant did not make a claim in relation to its contractual entitlement to claim for payment on termination, within 6 years of the date 5 days from termination of the Contract. The 6 years having expired on 13 June 2024.
[5]The result of the expiry of the limitation period for Q Group to make a claim under the contractual entitlement for payment on termination, is that Q Group's claim against the plaintiffs ended and a new claim arose against its solicitors.
[6] The plaintiffs submit those facts give rise to an interest of the solicitors for Q Group in the outcome of the claim for termination payments under the contract, having arisen after the limitation period expired, in relation to a matter that is part of the pleaded issues between the parties.[2]
[2] Plaintiffs' outline of submissions filed 11 August 2025.
Mr Jacobson's affidavit deposes to the following:
[16]Since it became apparent to me that the Plaintiffs were considering making the subject Application, between September 2024 and July 2025 I have spoken to Glenn Smith [the director of Q Group] on several occasions. I have said to him words to the effect that the Plaintiffs allege that:
a.the First Defendant was time-barred from amending its Counterclaim to assert payments pursuant to clause 13(c) of the Building Contract;
b.this being the case, the amendment to the Counterclaim is impermissible, and the First Defendant has now lost an opportunity to make a claim for any payment claims it made after the Contract was purportedly terminated by the Plaintiffs on 8 June 2018;
c.I should have advised the First Defendant to amend its Counterclaim to incorporate a claim pursuant to clause 13(c) of the Building Contract prior to the limitation period expiring;
d.I am responsible for this alleged omission; and
e.therefore, I have a conflict of interest.
[17]As can be seen from attachment JHJ-6 to my Affidavit, the First Defendant has taken advice from counsel regarding the alleged issues set out in the above paragraph and, in particular, the alleged conflict.
[18]On 30 June 2025, I spoke to Mr Smith by telephone and informed him of the Application. Mr Smith said to me words to the effect that even if it was established that the amendments to plead clause 13(c) were time barred, he had full confidence in me to continue acting on behalf of the First Defendant to defend the Proceedings and to prosecute the Counterclaim.[3]
[3] Affidavit of Mr Jacobson made and filed 21 July 2025.
The claim pursuant to clause 13(c) of the building contract (referred to in Mr Jacobson's affidavit in [16(c)] quoted above) is pleaded in the re‑amended statement of counterclaim filed 25 March 2025 as follows:
[16]Alternatively to paragraph 66 of the Defence, and paragraphs 11 and 12 above, the first defendant says that if, which is denied, the plaintiffs' notice of termination pleaded at paragraph 46 of the Further Amended Substituted Statement of Claim filed 6 August 2024 (FRASSOC) was effective in terminating the Building Contract, the first defendant is entitled to damages on the basis set out below.
[17]The Building Contract at clause 13(c) provides that, upon early termination of the Building Contract the first defendant, as builder, shall be entitled to be paid forthwith for all Work done and materials used or procured by it and chargeable to that date at the cost of the labour and materials supplied plus 10%.
Particulars
a. The first defendant relies upon the Building Contract at clauses 10, and 13(c), and item 11 of the Schedule.
[18]The first defendant is therefore entitled to payment of the amounts set out in its Payment Claims, less 10% to reflect the margin permissible under Item 10 of the Schedule, and repeats paragraphs 3 and 4 above.
[19]The first defendant repeats paragraph 5 above.
[20]The plaintiffs' failure to pay all of the Payment Claims, less 10% to reflect the Item 10 margin, has resulted in an outstanding amount owing to the first defendant in the sum of $389,844.31 (Alternative Outstanding Amount). (original emphasis)
The plaintiffs in their third amended defence to re-amended statement of counterclaim filed 7 May 2025 pleaded:
[18]As the first defendant had not made a claim for work done and materials used or procured and properly chargeable under clause 13(c) of the HIA Contract within six years of 13 June 2018, any claim is therefore barred by section 13 of the Limitation Act2005. (original emphasis).
I am told that the first time the matters in paragraphs 16 to 20, which raised cl 13(c) of the building contract, were pleaded was in the re‑amended statement of counterclaim filed 25 March 2025.
I have proceeded on the basis that:
1.it is arguable that Mr Jacobson has breached a duty owed to Q Group; and
2.Q Group may have a claim against Jacobson & Associates following that asserted breach.
In the present case, it appears that the potential claim against Jacobson & Associates has been identified to Q Group, who appears to have consented to Jacobson & Associates continuing to act. Mr Jacobson also deposes to having sought advice from independent counsel as to, amongst other things, the alleged conflict.
It appears Mr Jacobson has received advice from counsel which is to the effect that counsel did not consider there to be any conflict if the counterclaim of Q Group was amended to seek damages rather than relying on cl 13(c) of the building contract.
Notwithstanding that counsel's advice has been sought and obtained, from the authorities I consider that the Court must come to its own view of the matter, as the claim for the injunction is brought in the court's inherent jurisdiction to, as the plaintiffs put it, ensure the 'due administration of justice'.
Without intending any disrespect to counsel, it is not immediately plain from the evidence before the Court that independent counsel was asked to consider the due administration of justice in all of the circumstances; and, even if he was, then that, of itself, would not be determinative.
As I said, the plaintiffs submit that the restraint is necessary to ensure the due administration of justice. The plaintiffs submit:
[23]In the context of the due administration of justice, the test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.[4]
[4] Plaintiffs' outline of submissions filed 11 August 2025 (citations omitted).
The Full Court in Tottle Christensen v Westgold Resources NL [2003] WASCA 224 at [6] stated:
Whatever might be the ambit of the inherent jurisdiction of the Court, in our opinion it must encompass those cases where the representation of a litigant by solicitor and/or counsel may be seen objectively to involve a real risk of actual or apparent conflict of interest – the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation. Alternatively, there must, we think, viewed objectively, be seen to be a real need for an order preventing a solicitor or counsel from acting to imperil the due administration of justice and to protect the integrity of the judicial process. In both respects, the test adopted by the Court will, we think, be an objective one – the matter will be viewed from the perspective of a fair-minded, reasonably well-informed, disinterested bystander.
I have also borne in mind what was said in the Court of Appeal decision in Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 at [35], to the effect that caution should be exercised before a restraint such as the one presently sought is granted.
I also refer to the decision of Palmer J in Dimension Agriculture Pty Ltd v Nicoletti [2025] WASC 287 (Dimension Agriculture) at [59], and his Honour's approval of the explanation for the need to exercise caution, which comes in turn from the decision of Pagone J in Finch v The Heat Group Pty Ltd (No. 2) [2016] FCA 791; (2016) 353 ALR 193 at [9].
I consider that it is trite on the authorities that the Court is entitled to, and should require, disinterested legal representatives.
Many of the cases cited by the plaintiffs include statements to the effect that the court will ordinarily restrain a practitioner from acting, where the solicitor has a personal interest in the outcome of the action.
Where that is so, as the plaintiffs submit, the Full Court in Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372 stated:
[34]It follows also that the obligation of the practitioner and the interest of the court is wider than that of the client. It is for that reason that a protestation by the client that it wishes the legal practitioner to continue to act will not generally persuade a court not to restrain by injunction where otherwise it may be thought necessary to do so. …[5]
[5] Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372 (Murray J, Anderson and Steytler JJ agreeing).
The question is whether, on the assumed breach of duty in failing to make the plea based on cl 13(c) of the building contract within time, Mr Jacobson's conduct is sufficiently important or central to the resolution of the matter, such that it may relevantly be said that he has a personal interest in the outcome of the action.
In my view, the omission to make the plea based on cl 13(c) of the building contract within time, if it be such, does not make Mr Jacobson's conduct part of the underlying factual dispute between the plaintiffs and Q Group.
In my view, this case is more analogous to Dimension Agriculture, particularly at [79], [80] and [87]. This case may be contrasted, for example, with Thorpe v Lochel [2005] WASCA 85; (2005) 31 WAR 500 at [124] - [131]. It also may be contrasted with Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 at [194], where the particular practitioner had what the Court described as an intimate involvement in the transactions the subject of the action and had an obvious personal interest in the outcome.
In that case, the Court of Appeal held that there was a serious risk that the particular practitioner could not bring to the Court the independence expected of counsel.
Here, it appears to me that the acts which are at the heart of the dispute between the parties are matters which arose out of the building contract many years prior to the plea made by Q Group as set out above.
So in all of these circumstances, I am not persuaded that it is appropriate to restrain Q Group from using Jacobson & Associates as its solicitors, and I will dismiss the plaintiffs' Chamber Summons dated 25 June 2025.

Orders

1 The plaintiffs' Chamber Summons dated 25 June 2025 be dismissed.
2. The plaintiffs pay the first defendant's costs of the application to be taxed if not agreed and paid forthwith.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
26 AUGUST 2025