Técnicas Reunidas SA v Andrew

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Técnicas Reunidas SA v Andrew [2018] NSWCA 192
Hearing dates: 13, 14 August 2018
Decision date: 31 August 2018
Before: Bathurst CJ at [1];
Leeming JA at [2];
White JA at [86]
Decision:

1. Grant leave to appeal.

 

2. Rename the twelfth respondent as “William Leslie Ryan”.

 

3. Direct Técnicas Reunidas to file a notice of appeal in the form of the draft notice of appeal in the appeal books but reflecting order 2 above, and otherwise dispense with the obligations of service.

 4. Appeal dismissed, with costs.
Catchwords:

CONTRACT – discharge of contract inferred by agreement – abandonment – no need for express offer and acceptance

  SOLICITORS – retainer – firm gave advice to client in building dispute with subcontractor – ICC arbitration commenced six months later – client retained another firm to act in arbitration – no response by client to overtures by first firm to act for it in arbitration – one year later, partners acting for subcontractor in building dispute and in arbitration became partners of first firm – firm retained confidential information of client arising out of its earlier retainer – firm put in place information barriers relating to its earlier involvement – client sought injunction preventing firm from acting for subcontractor in arbitration – whether earlier retainer terminated or abandoned – whether firm had shown no real risk of disclosure of confidential information – whether inherent jurisdiction to protect administration of justice and its appearance supported injunction – primary judge dismissed proceedings – appeal dismissed
Legislation Cited: Construction Contracts Act 2004 (WA)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) and (Vic), r 11
Legal Profession Uniform Law (NSW), s 25
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Cooper v Winter [2013] NSWCA 261
Crowe-Maxwell v Frost (2016) 91 NSWLR 414; [2016] NSWCA 46
Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97,326
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146
McVeigh v Linen House Pty Ltd [1999] 3 VR 394; [1999] VSCA 138
Melreef Pty Ltd v Glenn [2015] WASCA 111
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Protector Glass Industries Pty Ltd v Southern Cross Autoglass Pty Ltd [2015] NSWCA 16
Ryder v Frohlich [2004] NSWCA 472
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248
Summers v Commonwealth (1918) 25 CLR 144; [1918] HCA 33
Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462
Técnicas Reunidas SA v…
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Details
Case
[2018] NSWCA 192
Decision Date

CaseChat Overview and Summary

Técnicas Reunidas SA (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had dismissed its application for an injunction. The appellant sought to prevent a law firm from acting for a subcontractor in an ICC arbitration, alleging a conflict of interest arising from the firm's prior retainer by the appellant in a related building dispute. The subcontractor was the respondent.

The Court of Appeal was required to determine whether the appellant's earlier retainer of the law firm had been terminated or abandoned. Further, the Court had to consider whether the firm had demonstrated that there was no real risk of disclosure of confidential information obtained during the earlier retainer, and whether the inherent jurisdiction of the court to protect the administration of justice and its appearance supported the grant of an injunction.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The reasoning focused on the principles of contract discharge by inferred agreement and abandonment, noting that an express offer and acceptance were not necessary for such a discharge. The Court found that the appellant had not responded to overtures from the firm to act in the arbitration, and that the firm had implemented information barriers to manage any potential conflict. The Court concluded that the appellant had not established a sufficient basis for an injunction, either on the grounds of conflict of interest or the inherent jurisdiction of the court. The appeal was dismissed with costs.

Orders

Orders of the court

1. Grant leave to appeal.

2. Rename the twelfth respondent as “William Leslie Ryan”.

3. Direct Técnicas Reunidas to file a notice of appeal in the form of the draft notice of appeal in the appeal books but reflecting order 2 above, and otherwise dispense with the obligations of service.

4. Appeal dismissed, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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