Canberra Residential Developments Pty Ltd v Brendas [2009] FCA 1484

FEDERAL COURT OF AUSTRALIA

Canberra Residential Developments Pty Ltd v Brendas [2009] FCA 1484

CANBERRA RESIDENTIAL DEVELOPMENTS PTY LTD v SPIROS BRENDAS, KENOSS PTY LTD and CANBERRA LAND DEVELOPMENTS PTY LTD

ACD 12 of 2009

STONE J

14 DECEMBER 2009

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

General Division ACD 12 of 2009

BETWEEN: CANBERRA RESIDENTIAL DEVELOPMENTS PTY LTD

Appellant

AND: SPIROS BRENDAS

First Respondent

KENOSS PTY LTD

Second Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD

Third Respondent

JUDGE: STONE J

DATE OF ORDER: 14 DECEMBER 2009

WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. The amended notice of motion filed on 3 August 2009 be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

General Division ACD 12 of 2009

BETWEEN: CANBERRA RESIDENTIAL DEVELOPMENTS PTY LTD

Appellant

AND: SPIROS BRENDAS

First Respondent

KENOSS PTY LTD

Second Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD

Third Respondent

JUDGE: STONE J

DATE: 14 DECEMBER 2009

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 By an amended notice of motion filed on 3 August 2009, the third respondent (applicant on the amended notice of motion) in the appeal seeks orders restraining two firms of solicitors from acting for the appellant, Canberra Residential Developments, in the forthcoming appeal from a judgment of Graham J delivered on 30 January 2009; (2009) 69 ACSR 435. His Honour dismissed claims made by Canberra Residential Developments Pty Ltd (CRD) against four respondents, including the present three respondents. The firms that are the subject of the present notice of motion are Ben Aulich and Associates ("BA") who presently represent the appellant and Meyer Vandenberg ("MV") a firm which has never represented the appellant but which has close ties with Ben Aulich and Associates. The notice of motion was supported by the affidavit of John Patrick Harris of JS O'Connor Harris & Co which has the carriage of the appeal for the third respondent, Canberra Land Developments Pty Ltd (CLD). 2 The facts deposed to by Mr Harris can be briefly summarised. According to Mr Harris the appeal from Graham J is concerned with issues arising from or in connection with a sale of land that is the subject of proceedings in the ACT Supreme Court (Supreme Court proceedings). CLD is a party to the Supreme Court Proceedings and is represented by Ms Kristine Scheul and Mr Mark McCormack of MV. 3 In the course of preparing for the Supreme Court proceedings Mr McCormack was given access to "a significant amount of the material that is germane to the First, Second and Third Respondents' position in this present matter". Apparently Mr McCormack obtained copies of 103 pages from the papers of CLD. 4 In the original application in this matter, CRD was represented by Mr Mark Flint, a partner in the law firm, Bradley Allen Layers. Mr Flint was assisted by Ms Alisa Taylor. Mr Harris deposed that "some time" after judgment was given in the original application Mr Flint left Bradley Allen and joined MV. In March 2009 Ms Taylor and some other persons (number not specified) also left Bradley Allen and joined MV. By letter dated 26 March 2009, Bradley Allen advised that it was transferring its file in the present matter to MV. On behalf of CLD in the Supreme Court proceeding, Mr Harris objected to the transfer because MV still held files and acted for CLD. Apparently as a result of CLD's objections, the file was transferred to BA rather than to MV. In a letter dated 15 April 2009 addressed to Mr Ben Aulich expressing concerns about the transfer to BA, Mr Harris said: It is my recollection that you formerly worked for Meyer Vandenberg and established your criminal practice in conjunction with that firm so that Meyer Vandenberg had a stand alone facility to deal with criminal matters. I appreciate that this brief summation may or may not be true, but it is the common perception. Before taking over the CRD file, would you be so kind as to advise whether your firm has any formal or informal ties with Meyer Vandenberg. If the answer is no on both queries, would you then confirm that no member of the firm of Meyer Vandenberg, or any staff of Meyer Vandenberg, will have anything to do with the file whatsoever. You would appreciate that in the normal [sic] circumstances my client would be somewhat alarmed about a legal firm with close ties to Myer Vandenberg taking over a matter which Meyer Vandenberg was disqualified from handling for good reason. You may therefore imagine its alarm when the very letter which you faxed to us announcing your appearance came from a Meyer Vandenberg fax machine. In answering the questions set out above you may care to explain this anomaly. 5 Other documents annexed to Mr Harris' affidavit attest to the close connection between MV and BA. A copy of an internet search of the MV website annexed to Mr Harris' affidavit states that BA is owned by Ben Aulich "in conjunction with the Meyer Vandenberg partnership". Mr Aulich was previously an associate in the employ of MV. A title search shows that the premises occupied by BA are subleased from companies that the evidence establishes belong to MV. 6 In his response to Mr Harris' letter of 15 April Mr Aulich confirmed that his firm has ties with MV but added, "it is a stand alone firm and acts independently of Myer Vandenberg". Mr Aulich refused to give the undertaking requested by Mr Harris saying: I am entitled to seek assistance from former members of Bradley Allen who acted for CRD in the substantive proceedings. In the same way, if my client engaged Joe Bloggs Pty Ltd, that firm would be entitled to speak with Alisa Taylor or Mark Flint about certain aspects of the matter. Therefore, it is neither appropriate nor necessary for me to give the confirmation which you seek.