JEFFREY GDANSKI (who is sued as the Executor of the Estate of LAWRENCE MAXWELL GDANSKI)	Plaintiff
v
RHANI RYNSBURGER & OTHERS (according to the attached Schedule, as Executors of the Estate of ARTHUR JOHN GDANSKI)	Applicants

---

JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2024
DATE OF JUDGMENT:	21 June 2024
CASE MAY BE CITED AS:	Re Gdanski
MEDIUM NEUTRAL CITATION:	[2024] VSC 356

---

PRACTICE AND PROCEDURE – Legal practitioners – Application to restrain legal practitioners for the plaintiff from acting in proceeding brought by the applicant for revocation of probate – Limited prior retainer – Whether breach of duty of loyalty and interests of justice require injunction – Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 and Schmidt v Ahrkalimpa Pty Ltd (Recv Apptd) [2020] VSCA 193 – Whether solicitor will be a material witness – Mitchell v Burrell [2008] NSWSC 772 – Consideration of solicitors conduct rules – Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 – Civil Procedure Act 2010 (Vic) – Dugan v Process Holdings Pty Ltd [2021] VSC 555 – Significant and prejudicial delay in bringing application – Held: Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke KC	Madgwicks Lawyers
For the Applicants	Mr J Mattin	HWL Ebsworth Lawyers

TABLE OF CONTENTS

Introduction

Background

Events Leading Up To Lawrence’s Death
Events at the time and shortly after Lawrence died

Legal Principles

Confidential Information

Duty of Loyalty

Duty of Loyalty Principles
Duty of Loyalty Submissions and Consideration

Interests of Justice

Interests of Justice Principles
Solicitor a material witness

Solicitors Conduct Rules

HIS HONOUR:

Introduction

By summons filed 20 May 2024 the applicants seek orders restraining the plaintiff’s lawyers (Madgwicks Lawyers (‘Madgwicks’)) and Ms Debra Dunn (‘Ms Dunn’) from continuing to act, or restraining the plaintiff from continuing to engage them.
The applicants rely on:
(a)an affidavit sworn by Simon Crawford on 20 May 2024. The applicant refers in particular to the letters dated 12 March[1] and 12 April 2024[2] from Mr Crawford of HWL Ebsworth Lawyers to Madgwicks. Mr Crawford refers to and exhibits a number of other affidavits filed in the proceeding;
(b)written submissions filed 20 May 2024 (in which the applicants say they rely on ‘various affidavits filed in support of the revocation application’).
[1]See affidavit of Simon Andrew Crawford filed 20 May 2024, 82-5.
[2]Ibid 90-2.
The plaintiff opposes the application and relies on:
(a)affidavit of Jeffrey Gdanski sworn 9 February 2024;
(b)affidavit of Ms Dunn sworn 24 May 2024;
(c)affidavit of Alexandra Lawrence sworn 24 May 2024; and
(d)written submissions filed 24 May 2024.

Background

The following background is taken from the affidavits relied on. In large part there was no dispute as to what has occurred. It is…

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.

Continue reading Re Gdanski

Details

AGLC: Re Gdanski [2024] VSC 356
Case: [2024] VSC 356
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of Re Gdanski involved an application to restrain the legal practitioners for the plaintiff from acting in proceedings brought by the applicant for revocation of probate. The matter was heard in the Supreme Court of Victoria. The central issue was whether the legal practitioners, who were retained for a limited purpose, had breached their duty of loyalty and whether an injunction was necessary in the interests of justice.

The court examined the principles set out in Spincode Pty Ltd v Look Software Pty Ltd and Schmidt v Ahrkalimpa Pty Ltd (Recv Apptd), focusing on the conduct of the solicitors in relation to their duty of loyalty and conflict of interest. Additionally, the court considered whether the solicitors would be material witnesses, referencing Mitchell v Burrell. The court also took into account the solicitors' conduct rules under the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 and relevant provisions of the Civil Procedure Act 2010 (Vic). The court further evaluated the impact of significant and prejudicial delay in bringing the application, drawing on Dugan v Process Holdings Pty Ltd.

After careful consideration, the court ruled that the application to restrain the legal practitioners from acting was to be refused. The court found that the solicitors had not breached their duty of loyalty, and an injunction was not warranted in the interests of justice. The significant delay in bringing the application also weighed against granting the relief sought.

Orders