Zamattia v Zamattia - [2019] NSWSC 1769

Supreme Court

New South Wales

Medium Neutral Citation: Zamattia v Zamattia [2019] NSWSC 1769
Hearing dates: 10 December 2019
Decision date: 10 December 2019
Jurisdiction: Equity
Before: Leeming JA
Decision:
The proceedings be stayed until such time as Mr Luitingh ceases to act for any of the parties.

Catchwords: LEGAL PRACTITIONERS – stay of proceedings – two brothers were directors of a company and also trustees of a trust – company commenced proceedings against Sydney Water – security for costs ordered and provided – proceedings ultimately dismissed –separate proceedings brought by one brother against other for breach of trust – cross-summons seeking removal of plaintiff brother as trustee – counsel retained by company in Sydney Water proceedings took instructions from both directors in relation to security for costs and financial circumstances of company and the brothers – security for costs ultimately satisfied by funds lent by brothers’ parents – distribution to repay parents challenged in pending proceedings – circumstances in which company provided other amounts to trustees in issue in pending proceedings – counsel formerly retained by company appeared for plaintiff brother – evidence unclear as to extent of his involvement in the litigation – whether counsel had received confidential information from defendant brother – whether proceedings should be stayed in exercise of inherent jurisdiction – whether any or all of counsel and solicitors for plaintiff could continue to act – evidence did not establish confidential information imparted to counsel – proceedings stayed pending counsel ceasing to act – no basis presently established for preventing other counsel and solicitors from acting for plaintiff
Cases Cited: Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248
Zamtech Truck Service Pty Ltd v Sydney Water Corporation [2017] NSWSC 768
Category: Procedural and other rulings
Parties: Anthony Zamattia as trustee for the Zamattia Family Trust (Plaintiff, one of the cross-defendants)
David Zamattia (First defendant/First cross-claimant)
Samuel Zamattia (Second defendant/Second cross-claimant)
Bruno Zamattia (Third defendant/Third cross-claimant)
Carolina Zamattia (Fourth cross-claimant)
Anita Zamattia (Cross-defendant)
Anthony John Ciancio (Cross-defendant)
Representation:
Counsel:

J Thomson and M Luitingh (Plaintiff/Cross-defendants)
N Simpson (Defendants/Cross-claimants)

Solicitors:
Grace and Grace Plus (Plaintiff)
Southern Waters Legal Pty Ltd (Defendants/Cross-claimants)
Button Associates (Cross-defendants)

File Number(s): 2017/335334
Publication restriction: Nil

EX TEMPORE Judgment

HIS HONOUR: By oral application which was foreshadowed by solicitor’s letter supplied between the solicitors last night, Mr Samuel Zamattia, one of the defendants in proceedings set down for final hearing before me for three days commencing today, applies for orders that each of counsel retained by the plaintiff and their instructing solicitors, and a further firm retained by the cross-defendants who have filed a submitting appearance, which is assisting the plaintiff, be enjoined from further acting in the proceedings.
The catalyst for the application was the disclosure yesterday that Mr Martin Luitingh of counsel was to appear, led by Mr Thomson, for…

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: [2019] NSWSC 1769
Decision Date: 10 December 2019

CaseChat Overview and Summary

The case of Zamattia v Zamattia involved two brothers who were both directors of a company and trustees of a trust. The company had brought proceedings against Sydney Water, which were ultimately dismissed. The plaintiff brother then initiated separate proceedings against his brother for breach of trust. The defendant brother filed a cross-summons seeking the removal of the plaintiff brother as trustee. Counsel who had been retained by the company in the Sydney Water proceedings had taken instructions from both brothers regarding security for costs and the financial circumstances of the company and the brothers. The security for costs was ultimately satisfied by funds lent by the brothers' parents, and the distribution to repay these parents was being challenged in the pending proceedings. Additionally, the circumstances in which the company provided other amounts to the trustees were also in dispute in the pending proceedings. Counsel who had been retained by the company in the Sydney Water proceedings appeared for the plaintiff brother in the current proceedings. However, there was evidence that the extent of his involvement in the litigation was unclear, and there was a question as to whether the counsel had received confidential information from the defendant brother. The court was required to determine whether the proceedings should be stayed in the exercise of its inherent jurisdiction and whether any or all of the counsel and solicitors for the plaintiff could continue to act.

The court found that the evidence did not establish that any confidential information had been imparted to the counsel. However, the court stayed the proceedings pending the counsel ceasing to act. The court did not find a basis presently established for preventing other counsel and solicitors from acting for the plaintiff. The court exercised its inherent jurisdiction to stay the proceedings pending the counsel ceasing to act. The court did not find a basis presently established for preventing other counsel and solicitors from acting for the plaintiff. The court's decision was based on the need to prevent any potential conflict of interest and to maintain the integrity of the legal profession. The court's decision was also based on the need to ensure that the proceedings were conducted fairly and without any prejudice to either party.

Orders