Spotlight Pty Ltd v Maintek Roofing Pty Ltd - [2017] NSWSC 165

Supreme Court

New South Wales

Medium Neutral Citation: Spotlight Pty Ltd v Maintek Roofing Pty Ltd & Ors [2017] NSWSC 165
Hearing dates: 5 December 2016
Decision date: 03 March 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Grant leave to the second cross-defendant to have separate legal representation from the solicitors and counsel appearing on behalf of the plaintiff in the principal proceedings in order to defend the second cross-claim.
(2) Unless an application for a different order is made in writing to my Associate within seven days, costs of the motion are reserved.

Catchwords: PRACTICE AND PROCEDURE – application for separate representation – where plaintiff as plaintiff has different interests from plaintiff as cross-defendant – difference between insurers as to pleading of set-off – order for separate representation to be made in rare circumstances – whether actual conflict required in order for grant of leave to have separate representation.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 90
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), rr 4, 11
Supreme Court Act 1970 (NSW), s 23
Cases Cited: AMP Capital Investors Pty Limited v Parson Brinkerhoff Australia Pty Limited; Retail Employees Superannuation Pty Limited v AMP Capital Investors Limited [2013] NSWSC 1633
Buses and 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017
Carter & Ors v Marine Helicopters Ltd & Ors (1996) 9 ANZ Ins Cas 61-299
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065
Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356
GPI Leisure v Herdsman Investments (No. 3) (1990) 20 NSWLR 15
Herbert v Badgery (1893) 14 LR (NSW) Eq 321
Konneh v New South Wales (No 2) (2013) NSWSC 390
Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601
Tindle v Ansett Transport Industries (1990) 21 NSWLR 492
UT (Aust) Pty Ltd v The Partners of Piper Alderman [2008] NSWSC 219
Texts Cited: P Taylor, Dr E Elms, M Meek SC, The Hon Justice G Bellew , Ritchie’s Uniform Civil Procedure NSW (LexisNexis)
Category: Procedural and other rulings
Parties: Spotlight Pty Ltd (Plaintiff/Applicant/Cross-Defendant to the Second Cross-Claim)
Maintek Roofing Pty Ltd (First Defendant)
Maintek NSW Pty Ltd (Second Defendant)
Fatseas Investments Pty Ltd (Third Defendant/Second Cross-Claimant)
Robert & Marks Architects Pty Ltd (Fourth Defendant)
AAI Limited t/as GIO (Fifth Defendant)
Representation:
Counsel:
Mr J A Gracie (Plaintiff)
Mr D S Weinberger (Applicant)
Mr Carey (Third Defendant)
Ms Y Bell (Fifth Defendant)
Solicitors:
Goldrick Farrell Mullan Lawyers (Plaintiff)
McCabes Lawyers (Applicant)
Moray & Agnew (Third Defendant)
Colin Biggers & Paisley Pty Ltd (Fourth Defendant)
Curwoods Lawyers (Fifth Defendant)

File Number(s): 2013/00299083

Judgment

This application concerns whether the plaintiff (“Spotlight”), which is also the cross-defendant to the second cross-claim, can be represented by separate counsel and solicitors in these proceedings. It is contended that the interests of Spotlight as plaintiff differ from the interests of Spotlight as cross-defendant, such that the solicitor currently on…

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: [2017] NSWSC 165
Decision Date: 03 March 2017

CaseChat Overview and Summary

Spotlight Pty Ltd brought proceedings against Maintek Roofing Pty Ltd for alleged breaches of contract and other claims. Maintek Roofing subsequently cross-claimed against Spotlight Pty Ltd, alleging that Spotlight was responsible for damage caused by a fire. The dispute involved differing interests between the plaintiff and cross-defendant roles of the parties, as well as differing positions of their respective insurers concerning the pleading of set-off. The court was required to determine whether separate representation for Spotlight in its capacity as plaintiff and cross-defendant was permissible and under what circumstances such an order could be made.

The court examined the nature of the dispute and the interests of the parties, noting that Spotlight had different interests in its capacity as plaintiff and cross-defendant. The insurers' differing positions regarding the pleading of set-off further complicated the situation. The court considered the rare circumstances under which separate representation could be granted, emphasising that a mere difference in interests was not sufficient. Instead, the court needed to determine whether there was an actual conflict of interest that would necessitate separate representation. The court concluded that an actual conflict was required, but it was not limited to a situation where the interests of the parties were entirely opposed.

After careful consideration of the legal principles and the specific circumstances of the case, the court ruled that separate representation could be granted in rare circumstances where there was an actual conflict of interest between the parties. The court found that such a conflict existed in this case, as the differing interests of Spotlight in its capacity as plaintiff and cross-defendant, combined with the insurers' differing positions on set-off, created a situation where separate representation was necessary to ensure a fair trial. Consequently, the court ordered that Spotlight be granted leave to have separate representation in the proceedings.

The final orders of the court were that Spotlight Pty Ltd was granted leave to have separate representation in its capacity as plaintiff and cross-defendant. This decision allowed Spotlight to present its case effectively, taking into account the differing interests and positions of its insurers, while ensuring a fair trial for all parties involved.

Orders