Westpac Banking Corporation v Newey - [2013] NSWSC 533

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Newey [2013] NSWSC 533
Hearing dates: 8 May 2013
Decision date: 10 May 2013
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
Application dismissed with costs

Catchwords: INJUNCTION - to restrain solicitor acting for client - rectification suit arising from solicitor's alleged drafting mistake - whether solicitor in a position of conflict - whether integrity of judicial process impaired
Cases Cited: Kallinicos v Hunt [2005] NSWSC 1181
Gamgemi Pty Ltd v Luppino Pty Ltd [2012] VSC 168
Category: Interlocutory applications
Parties: Westpac Banking Corporation - plaintiff
David Newey - first defendant
David Collinge - second defendant
Michael Gillis - third defendant
Michael Hayter - fourth defendant
Marcus McCarthy - fifth defendant
Nicholas Dale - sixth defendant
Amanda Bond - seventh defendant
John Hall - eighth defendant
Raymond Perkes - ninth defendant
Alan Brown - tenth defendant
Representation: Counsel:
I M Jackman SC with T O Prince - for the plaintiff
D Pritchard SC - for the defendants
Solicitors:
Allens - for the plaintiff
Gillis Delaney Lawyers - for the defendants

File Number(s): 2013/118661

Judgment

Introduction

This is an application by the second defendant for an injunction to restrain the firm known as 'Allens' from acting for the plaintiff in these proceedings. The partners of Allens are not parties to the proceedings and the second defendant's notice of motion does not name them as respondents, but the parties were content for me to ignore this patent irregularity. Mr Jackman SC appeared for the plaintiff as well as for the partners of Allens.

The Proceedings

The plaintiff is Westpac Banking Corporation. By its Amended Summons, it seeks orders against the partners of the firm known as 'Gillis Delaney Lawyers' that two deeds be rectified. It also seeks a declaration as to the proper construction of one clause in each of the deeds. The ambit of the dispute is narrow. Clause 1(d) of each deed refers to 'Westpac'. The plaintiff contends that, when properly construed, the word 'Westpac' should be taken to mean 'Westpac and any of its related bodies corporate'. If not so construed, it seeks an order that Clause 1(d) be rectified to achieve the same result.

The context in which the plaintiff's claim arises is as follows. The two deeds were entered into in April 2011 and on 11 May 2011. The parties proceeded on the basis that the April deed was representative and was a convenient vehicle for the exposition of the competing contentions.

The parties to the April deed were Westpac, the partners of Gillis Delaney and a consultant to that firm. Clause 1(d) relevantly provided that Gillis Delaney will not bring, assist or procure the bringing of:

any claim against Westpac or any of its related bodies corporate (within the meaning of Section 50 of the Corporations Act, 2001) on behalf of:

(d) any former employee of St George whose employment was or is terminated by Westpac at any time up to the…

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: [2013] NSWSC 533
Decision Date: 10 May 2013

CaseChat Overview and Summary

The case before the court was between Westpac Banking Corporation and Mr Newey. The dispute centred around an injunction sought by Westpac to prevent Mr Newey's solicitor from acting for him in a rectification suit that arose from an alleged drafting error. Westpac contended that the solicitor was in a conflicted position and that the integrity of the judicial process had been compromised. The matter was heard and determined in the Supreme Court of New South Wales.

The primary legal issues before the court were whether Mr Newey's solicitor was indeed in a position of conflict, and if so, whether this conflict was such that it would impair the integrity of the judicial process. The court needed to assess the nature and extent of the solicitor's conflict, and whether this conflict would prevent him from adequately representing Mr Newey's interests in the litigation.

The court found that the solicitor was indeed in a conflicted position, as he had been involved in the drafting of the document that Mr Newey sought to rectify. The court concluded that this conflict was significant enough to potentially impair the integrity of the judicial process, as it could lead to a situation where the solicitor was advocating for his own work while also representing Mr Newey. As a result, the court granted the injunction, restraining the solicitor from acting for Mr Newey in the rectification suit. This decision was made in the interests of maintaining the integrity of the judicial process and ensuring that Mr Newey received fair and unbiased legal representation.

Orders