Pearlbran v Win Mezz No. 19 Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Pearlbran & Anor v Win Mezz No. 19 Pty Ltd & Anor [2009] QSC 292

PARTIES:

PEARLBRAN PTY LTD AS TRUSTEE FOR THE MACLEAN LAND TRUST

(first plaintiff)

and

STEPHEN JOHN ANDERSON AND DAVID ANTHONY ANDERSON AS TRUSTEES FOR THE ANDERSON FAMILY TRUST NO. 2

(second plaintiff)
v
WIN MEZZ NO. 19 PTY LTD ACTN 122 488 519

(first defendant)

and

WINGATE PROPERTY FINANCE PTY LTD ACN 128 764 134

(second defendant)

FILE NO:

BS6704/08

DIVISION:

Trial Division

PROCEEDING:

Application.

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

15 September 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

10 July 2009

JUDGE:

Douglas J

ORDER:

Order that Duke Myrteza and Forbes Dowling Lawyers cease to act as the solicitors for the plaintiffs herein and that Forbes Dowling Lawyers take steps to withdraw as solicitors on the record within 14 days of today.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – where the defendants sought an order restraining a firm of solicitors from continuing to act for the plaintiffs – whether there was a conflict between the duties owed by the solicitors to their clients and their duties to the Court – where the relevant solicitor’s interest in contracts associated with his client’s proposed land development and his efficacy in his conduct as the plaintiffs’ solicitor in dealing with the contract between the plaintiffs and the defendants and the potential relevance of his evidence to allegations that the defendants behaved unconscionably were matters in issue – whether the solicitor was observably independent to a fair minded, reasonably informed member of the public.  

Legal Profession (Solicitors) Rule 2007 r. 13.4

Mitchell v Burrell [2008] NSWSC 772 at [3], [20] and [19]-[24] applied.
Kallinicos v Hunt (2005) 64 NSWLR 561, 584-587 at [87]-[95] applied.
Kooky Garments Ltd v Charlton [1994] 1 NZLR 587, 589-590 applied.
Watkins v Christian [2009] QCA 101 discussed and applied.

COUNSEL:

RJ Anderson for the applicants/defendants

RIM Lilley SC with G Del Villar for the respondent Forbes Dowling Lawyers and for the respondents/plaintiffs

SOLICITORS:

Herbert Geer for the applicants/defendants

Forbes Dowling Lawyers for the respondents/plaintiffs and for themselves

1. Douglas J:  This is an application to restrain solicitors from continuing to act for the plaintiffs in these proceedings.  The defendants submit there is an unmanageable conflict between the duties owed by the solicitors to their clients and their duties to this Court because of their interest in and their conduct and supervision of negotiations related to the financing of a proposed development referred to in the litigation.

Background

1. The plaintiffs’ claim in the action is for declaratory relief and for damages for breach of a contract to fund a property development as well as other relief.  The further amended statement of claim pleads that the first plaintiff, Pearlbran Pty Ltd, accepted an offer of finance from the second defendant, Wingate Property Finance Pty Ltd, to fund the development of land at South Maclean.  The offer was conditional…