Dyce v David Landa Stewart Pty Ltd [2021] NSWSC 590

Supreme Court New South Wales

Medium Neutral Citation: Dyce v David Landa Stewart Pty Ltd [2021] NSWSC 590 Hearing dates: 13 May 2021 Decision date: 25 May 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) order that the defendant deliver up to the second to seventh plaintiffs all of the plaintiffs' documents held by the defendant relating to: (a) PL Dyce Pty Ltd (ACN 000 261 807); (b) Marion Lewis Pty Ltd (ACN 000 050 779); (c) Loch Ness Real Estate Pty Ltd (ACN 004 247 125); (d) Lidcombe Investments Pty Ltd (ACN 000 622 211); (e) Richmond Export Pty Ltd (ACN 000 068 682); and (f) Ivan Dyce Pty Ltd (ACN 000 200 555). (2) Unless a party applies in writing to my Associate for a different order within seven days hereof, order the defendant to pay the second to seventh plaintiffs' costs of the proceedings. (3) Note that the first plaintiff no longer presses his claim for relief. (4) Grant leave to the first plaintiff to discontinue the proceedings but waive compliance with the requirement that the first plaintiff file a notice of discontinuance. (5) Unless a party applies in writing to my Associate for a different order within seven days hereof, order the defendant to pay the first plaintiff's costs of the proceedings up to and including 25 September 2020. Catchwords: OCCUPATIONS — Legal practitioners — Application for an order pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) that the defendant deliver up all documents it holds which relate to the plaintiffs — Whether a valid authority for delivery up of the documents had been received — Meaning of "information" in the context of the authorities CORPORATIONS — Formalities — Whether, by reference to their articles of association, the companies could authorise the defendant to deliver up the documents — Gathering of directors for the purpose of authorising the delivery up of the companies' information constituted a meeting for the purposes of the articles of association of the companies — Sole director entitled to appoint a director to fill the vacancy left by a director who became incapable — Resolution passed by sole director under s 248B of the Corporations Act 2001 (Cth) AGENCY — Duties of solicitor to client — Awareness of what is required of a solicitor as a fiduciary — A solicitor is bound to act in accordance with the instructions of the companies — The companies acted through their directors acting collectively as the board of each company CONTRACTS — Parties — Mental capacity to sign authorities and instruct new solicitors — Testamentary capacity — Reasonable steps taken by solicitors to ascertain capacity Legislation Cited: Companies Act 1936 (NSW), arts 72, 82, 83 Companies Act 1961 (NSW), arts 72, 79, 83, 84 Corporations Act 2001 (Cth), ss 129, 248B Legal Profession Uniform Law (NSW), s 472 Real Property Act 1900 (NSW), s 127 Uniform Civil Procedure Rules 2005 (NSW), sch 7 Cases Cited: HL Bolton (Engineering) Co. Ltd v TJ Graham & Sons [1957] 1 QB 159 La Compagnie de Mayville v Whitley [1896] 1 Ch 788 MYT Engineering Pty Ltd v Mulcon Pty Ltd (1997) 140 FLR 247 Northside Developments Proprietary Limited v Registrar-General (1990) 170 CLR 146; [1990] HCA 32 Category: Principal judgment Parties: Peter Dyce (First Plaintiff) PL Dyce Pty Ltd (ACN 000 261 807) (Second Plaintiff) Marion Lewis Pty Ltd (ACN 000 050 779) (Third Plaintiff) Loch Ness Real Estate Pty Ltd (ACN 004 247 125) (Fourth Plaintiff) Lidcombe Investments Pty Ltd (ACN 000 622 211) (Fifth Plaintiff) Richmond Export Pty Ltd (ACN 000 068 682) (Sixth Plaintiff) Ivan Dyce Pty Ltd (ACN 000 200 555) (Seventh Plaintiff) David Landa Stewart Pty Ltd (ABN 26 166 455 778) (Defendant) Representation: Counsel: C Harris SC / H Atlan (Plaintiffs) J Armfield (Defendant)