The Law Society of NSW v Seymour [1999] NSWCA 117

New South Wales Court of Appeal CITATION : The Law Society of NSW v Seymour [1999] NSWCA 117 FILE NUMBER(S) : CA 40910/97 HEARING DATE(S) : 16/03/99 JUDGMENT DATE : 3 May 1999

PARTIES : The Council of the Law Society of New South Wales v Michael Thomas Seymour JUDGMENT OF : Priestley JA at 1; Stein JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 11510/94 LOWER COURT JUDICIAL OFFICER : Barr J

COUNSEL : L P Robberds QC/I M Khan (Appellant) A J Bellanto QC/K Poulos (Respondent) SOLICITORS : R J Collins (Appellant) Piggott Stinson Stuart Thom (Respondent) CATCHWORDS : CONTEMPT; alleged breach of order restraining respondent from "acting or purporting to act" as a solicitor; whether respondent's involvement in three transactions constituted breach; competency of appeal. DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40910/97 CLD11510/94 PRIESTLEY JA STEIN JA FITZGERALD JA

Monday, 3 May 1999

THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v Michael Thomas SEYMOUR

JUDGMENT

1 PRIESTLEY JA: I agree with Fitzgerald JA. 2 STEIN JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: Michael Thomas Seymour is a former solicitor whose name was removed from the roll of solicitors by order of this Court on 14 April 1982. On 27 June 1994, the Council of the Law Society of New South Wales commenced proceedings against Seymour by summons seeking, among others, orders restraining him from acting or purporting to act as a solicitor and from acting in breach of certain provisions of the Legal Profession Act 1987. On 5 September 1994, Blanch J made orders by consent that: 1 Seymour be restrained from acting or purporting to act as a solicitor; and 2 Seymour be restrained from acting in breach of any and all of the provisions of Pt 3A of the Legal Profession Act. 4 By a notice of motion filed on 10 October 1996, the Law Society sought orders that Seymour "be found guilty of contempt" of the Supreme Court and, "punished for the said contempt". The notice of motion was dismissed with costs on 2 December 1997 by a Judge of the Common Law Division. The Law Society has appealed, and Seymour has objected to the competency of the appeal. 5 Seymour's objection to the competency of the Law Society's appeal is based on the premise that the proceeding for contempt, in which the Law Society seeks to have Seymour "found guilty" and "punished", is a criminal proceeding. It was argued that Seymour has been "acquitted" of the "charge" of contempt, and that no appeal lies from such a verdict. I propose to postpone the latter question of its competency until after consideration of the Law Society's appeal on the merits. 6 Not all of the orders requested in its original notice of motion are still sought by the Law Society. The orders which it asks this Court to make are that: 1. Seymour be found guilty of contempt of the Supreme Court for failing to comply with the orders made by Blanch J on 5 September 1994 in that he acted as a solicitor contrary to the provisions of Pt 3A of the Legal Profession Act , 1987; (a) during the period August and October, 1995; (b) during the period January to August, 1996; and (c) during the period of January and February, 1996. 2. Seymour be punished for the said contempt. 3. Seymour pay the costs of the proceedings in the Common Law Division and this Court. 7 It is not clear to me what was sought to be achieved by the second order made by Blanch J by consent on 5 September 1994 or what is sought to be achieved by the reference in the orders sought from this Court to Pt 3A of the Legal Profession Act 1987. It is common ground that Seymour is not a solicitor and that he is guilty of contempt for his failure to comply with the first order made by consent by Blanch J on 5 September 1994 if he acted as a solicitor as alleged by the Law Society. Before this Court, Seymour did not argue that it was not open to the Court to conclude that he had acted as solicitor contrary to the first order made by Blanch J by consent on 5 September 1994 if the totality of his conduct merits that description. 8 The only evidence consisted of affidavits filed by the Law Society upon which the deponents were not cross-examined. Seymour had indicated almost a year before the hearing in the Common Law Division that he would not be "calling any evidence". The only dispute concerning the trial judge's factual findings is confined to his conclusions that Seymour did not act as a solicitor in any of the three transactions relied upon by the Law Society. It is accordingly convenient to set out, at length, the facts stated in the judgment under appeal. 9 The trial judge said: "The lease transaction The first matter complained of arises out of written and oral correspondence between Ms Anne Marie Goodrick, solicitor, and the defendant about a lease. Ms Goodrick swore an affidavit which was read in the motion. Hers was the only account of what happened, and she was not cross-examined. Between August and October 1995 Ms Goodrick acted for NE Christie (NSW) Pty Limited ("Christie") over the letting of premises owned by Christie at Unit 13, 7 Anella Avenue Castle Hill. On 3 August 1995 Ms Goodrick received from one, Darren Holland, a document called "Lease advice", containing particulars of the premises and other relevant matters. I assume that Mr Holland was Christie's agent. The lessor was named in the lease advice as Christie. The lessee was named as Anchor Pad (Aust) Pty Limited and the guarantor was Darrel Bertram. The document was obviously given and received as instructing Ms Goodrick to draw up a lease, though it did not say so in so many words. In the top right-hand corner of the document, under the typed heading "Solicitor Details", appeared the handwritten words - Send to: Michael Seymour Suite 19, 1 Gladstone Rd, Castle Hill 2154 On 8 August 1995 Ms Goodrick drew up a lease and wrote a letter to the defendant at the address indicated on the lease advice. She wrote that she acted for the lessor and understood that the defendant acted for the lessee. She asked him to have the lease executed and sent back to her with certain cheques. It appears from the letter that the same lessee already had a lease of certain premises at another address in Castle Hill from a lessor which might have been associated with Christie and for which Ms Goodrick acted. Ms Goodrick said in the letter that that lessor would consent to a surrender of that lease and asked the defendant to return it to her together with a surrender executed by the lessee. On 21 August 1995 Ms Goodrick sent a short letter to the defendant at the same address following up the earlier letter, because she had received no reply. Although Ms Goodrick wrote to the defendant at the address set forth in the lease advice she did not address him as a solicitor. I shall make further reference to that circumstance. The defendant wrote a letter in reply on 4 September 1995. It was on a printed form which showed the address to which Ms Goodrick had written, together with telephone and fax numbers. At the head of it appeared the words "Michael Seymour" followed by the letters "LLB". At the foot of the printed document, under a horizontal line, appeared the following words - Business Corporate Consultant Registered Migration Agent No. 61955 under the Migration Act 1958 The body of the letter was as follows "Re: Anchor Pad (Aust) Pty Ltd & N.E. Christie (NSW) Pty Limited Lease of Unit 13, 5-7 Anella Avenue, Castle Hill I refer to your letters of 8th and 21st August 1995, and advise that I have discussed this matter with Darrell Bertram. I note that the proposed commencing date his now changed from 18th September 1995, to 2nd October 1995. Work has not yet commenced on the alterations to the premises and it was only last Friday that the lessee signed the Development Application. I am instructed that there was an agreement between the parties for a rent free period of two months. There is however no reference to the rent free period in the lease. Please confirm the rent free period. With regard to the security deposit, I am instructed that your client holds a deposit of approximately $3,000 on premises currently leased from it at No. 1 Gladstone Road, Castle Hill. This deposit could be adjusted in relation to the monies payable under Clause 4 of the lease. With regard to clause 5(a), I am instructed to suggest that the period of 14 days should be changed to 30 days. Anchor Pad (Aust) Pty Limited has expended considerable monies in relation to the purchase and intended promotion of a new product. It is for this reason that the company wishes to move offices to more suitable premises. I am instructed to request that a provision be included in the lease giving the lessee the option to terminate the lease without penalty on two months' notice within 18 months from the date of the commencement of the lease. I look forward to your early reply." On 7 September 1995 Ms Goodrick wrote back to the defendant, addressing him as before. The relevant parts of the letter are as follows - "We refer to your letter dated 4 September 1995, and are instructed to advise as follows:- 1. Regarding commencement date, see our letter dated 5 September 1995. Work will not commence on the fitout to the premises until we are in receipt of an executed Lease. It is estimated that fitout work will take three (3) weeks, thus it is imperative we receive the executed Lease as soon as possible. 2. You are correct, there is an agreement for a rent free period of two months and thus the following clause is to be added to the Lease as Clause 7. "7. Not withstanding any other provision herein, the Lessee shall not be required to commence payment of monthly rental until 2 December 1995". 3. We are instructed that the Lessor holds $1,286 as security deposit on the premises at 1 Gladstone Road Castle Hill, thus it will require the remainder of $3,714.00 to be provided together with the Lease. We would regard the deposit currently held as part of the first instalment. 4. Your requested amendment to Clause 5(a) is not agreed. 5. Your request for a provision that the Lessee be entitled to terminate with eighteen (18) months of commencement is not agreed. Please amend the Lease according to the above and arrange for execution promptly so that Fitout may commence in time for the commencement date on 2 October 1995." Reminder letters were sent, addressing the defendant in the same manner, on 18 and 25 September 1995. A short letter was sent on 6 September 1995, addressing the defendant in the same manner and enclosing a copy of some strata plan by-laws. On 3 October 1995 the defendant replied by facsimile transmission, using the same printed document. The body of the letter was as follows - "In reply to your letters I advise that the lease documents have now been executed. Clause 5(a) has been amended. I am instructed to request that the commencing date for the payment of rent be 15th January 1996. On your confirmation of this the documents will be returned to you together with the cheques requested in your letter of 8th August 1995." The defendant sent a further letter by the same manner on 9 October 1995, the body of which was as follows - "I advise that the lease documents have been executed but before forwarding same to you I wanted to discuss a number of amendments, having regard to the agreed amendments between the parties. I understand that you are away this week and your secretary has asked me to confirm the amendments in writing. 1. The lease as submitted refers to a commencing date of 18th September 1995, and a terminating date of 17th March 1999. Please clarify the commencing date. I am advised that the lessee proposes to take occupation on 1st November 1995, but rent will be payable as and from 1st January 1996. 2. With regard to item 8 in the schedule I assume that both review dates will be 1st January 1997 and 1st January 1998. 3. Clause 4 obviously has to be amended. I note that the lessor holds a security deposit of $1,286 and as suggested in your letter of 7th September 1995, the balance of $3,714 could be paid as the 2nd instalment. I assume by that, this payment will be due on 1st January 1996. I look forward to hearing from you at your earliest convenience." On 10 October 1995 Ms Goodrick replied, addressing the defendant as before, saying that the lease would commence on 1 November 1995 and that the rental commencement would be 1, not 15, January 1996. Ms Goodrick asked the defendant to add those dates to the executed lease and send it back as soon as possible. On 17 October 1995 the defendant replied again by facsimile transmission. The body of the letter was as follows - "In reply to your letter of 10th October 1995, I enclose: 1. Lease documents; and 2. Fitout Exhibits duly signed; 3. Bank cheque for $370.90; 4. Cheque for $741.00 for your fees. Would you please confirm when the lease has been registered." On 23 October 1995 Ms Goodrick wrote the defendant a letter, the body of which is as follows - "We refer to your letter dated 17th October, 1995 and acknowledge receipt of the enclosures thereto. While most of the amendments you have made to the Lease are in order with our previous correspondence, the matter of the Security Deposit is not correct. As we pointed out in our letter of 7th September, 1995 we regard the $1,286.00 currently held as part of the first instalment. Therefore, your client should pay I immediately the sum of $1,214.00 to complete payment of the first instalment. The second instalment will remain at $2,500.00 which will be due on 1st November 1995. In addition, you have made changes to the dates in Item 8 which are incorrect. The CPI Review Date will be 1st November, 1996 and the Market Review Date will be 1st November, 1997. We will correct the Lease accordingly. We look forward to receipt of your client's cheque in the sum of $1,214.00 immediately. We will then arrange for execution of the Lease by the Landlord, stamping and registration." On 5 September 1995 Ms Goodrick telephoned the defendant at the number shown on his letterhead. The following conversation took place - Defendant: " Michael Seymour" Ms Goodrick: "Anne Goodrick, Michael, I was wondering what is happening in this matter between NE Christie and Anchor Pad at Annella Avenue?" Defendant: "I've sent you a letter about it." Ms Goodrick: "Can you tell me what the problems are?" Defendant: "My client needs a two months rent free period. They've already paid Christies a $3,000 security deposit which should be credited to this matter." Ms Goodrick: "I don't think Anchor Pad ever did pay the security deposit for the previous lease." Defendant: "I'm instructed that they have." Ms Goodrick: "I'll check that. Is there anything else?" Defendant: "We want an escape clause after 18 months. This a new business venture for my clients and it might go bad." Ms Goodrick: "I'll have to get instructions but I think the answer will probably be no." Defendant: "I believe the start date will be 2 October." Ms Goodrick: "That's right I will get instructions about the rest and get back to you." On 27 October 1995 Ms Goodrick had a further telephone conversation with the defendant in which the following was said - Defendant: "I am ringing in response to your letter dated 23 October. My client agrees that the changes you propose are correct. They will pay the $1,214 to Christies direct. Would you finalise the lease and get it stamped and registered?" Ms Goodrick: "Fine, I'll get that done." … The transfer of an interest in a patent application. Between December 1995 and late 1996 Mr WJ Henty, solicitor, acted on behalf of Headland Securities Pty Limited and other interested persons over the transfer of an interest in a patent application. It appears that one, Mr Larkin, was an inventor and that North Securities Pty Limited and Headland Securities Pty Limited agreed to promote and market Mr Larkin's inventions. Mr Larkin may also have granted a mortgage over his interest in a patent application in order to secure the repayment of borrowed money. Mr Ross Macarthur wanted to purchase the whole or part of Mr Larkin's interest in the patent application. Other interested persons appear to have been Mr Moore and Mr Cameron. Mr Henty, acting for all parties, drew up an Assignment of Patent Co-Owners Agreement and a Limited Guarantee Agreement. The defendant was consulted by Mr Macarthur and wrote a series of letters to Mr Henty. Copies were annexed to an affidavit of Mr Henty. The letterhead used by the defendant was the one he had used to write to Ms Goodrick. In a letter dated 17 January 1996 the defendant said this - "Re: Macarthur, Larkin, Norths Securities Pty Ltd & Others - Patent I advise that I have been consulted by Ross Macarthur who has handed to me copies of an Assignment of Patent Co-Owners Agreement and a Limited Guarantee Agreement prepared by your firm. I understand that you are acting for all parties in respect of these agreements but Mr. Macarthur has asked me to raise certain matters with you for consideration by the other parties to the agreement. Mr. Macarthur and Mr. Larkin are close friends. I am instructed that other agreements have been entered into between the same parties in relation to the same patent and patent applications although Mr. Macarthur was not a party to those agreements. However these agreements have a direct bearing upon Mr. Macarthur's interest in his proposed acquisition and dealings with Mr. Larkin. Monies have already been advanced by Mr Macarthur to Mr. Larkin in anticipation of the agreement being executed and upon certain representations and promises made by Mr. Larkin. Would you please identify the previous agreements in existence between the parities (sic). I understand there are two agreements, a Patent Mortgage dated 20th March 1995 and an Assignment of Patent Co-Owners Agreement dated 21st April 1995. I only have a copy of the first page of the Deed dated 21st April 1995, and would be grateful if you would provide me with a copy of the whole of that Deed. In addition would you also advise what further agreements, if any, have been entered into between Mr. Larkin, North Securities Pty Ltd and Headlands Securities Pty Ltd in relation to the Patents referred to in those documents or for that matter, any other parties. The Patent Mortgage refers to monies lent to Mr. Larkin and I would be pleased if you would confirm: The amount of the monies lent Details of any repayment of the said monies Confirmation that there is no default by Mr. Larkin under the terms of the Patent Mortgage or otherwise. Confirmation that your costs have been paid and that all deeds of 20th March and 21st April 1995 have been stamped. On my instructions North Securities Pty Ltd and Headlands Securities Pty Ltd were to promote and market the inventions of Mr. Larkin, the subject of patents, etc. They had the expertise in this regard, Mr. Larkin didn't. I would be pleased if you would indicate what steps have been taken in this regard by your clients and what steps have been taken to register the patents overseas, in order to protect the invention. Concerning the Agreements you recently prepared, Mr. Macarthur has asked me to raise with you: 1. In relation to the limited guarantee, Mr. Macarthur requires an agreement by the principals of that agreement, to an assignment to him of the debtor's interest in the patent in the event that Mr. Macarthur as guarantor is called upon to pay the loan monies to the principal and/or meet Mr. Larkin's default. This is not an unreasonable request, given Mr. Larkin's financial circumstances and Mr. Macarthur's risk in the venture. In addition he requires to be given ample and reasonable notice of any default and ample time in which to pay to the principals the monies the subject of the default or to rectify the default. I am instructed to suggest that a period of 60 days in the circumstances would not be unreasonable time frame. 2. With regard to the assignment of the Patent Co-Owner's Agreement, Mr. Macarthur requires a proviso to be added to Clause 9 in words to the effect: "Provided always that if any of the parties should embark upon a negotiating process to sell their respective interest in the Patent or to enter into any licence agreement in respect thereof then immediate notice of such negotiations shall be given to the other parties to this agreement and that full disclosure of negotiations be provided." Would you also advise me of any matter concerning these patents which ought in the circumstances be properly disclosed to Mr. Macarthur. I look forward to your comments on the above." In a letter dated 6 June 1996 the defendant said this - "RE: Macarthur, Larkin North Securities Pty Ltd & Others - Patents I acknowledge receipt of your facsimile transmission of 15th May 1996 and 6th June 1996 both of which have been passed onto my client for instructions. I understand Mr. Macarthur has forwarded to you a cheque for $315 as requested and accordingly I would be pleased to receive copies of the Agreements in question. These are of course the Agreements referred to in your facsimile transmission of today's date." On 14 June 1996 the defendant wrote a letter in the following terms - "Re: Macarthur, Larkin, North Securities Pty Ltd & Others - Patents I refer to my letter to you of 6th June 1996, and again request that you forward to me copies of the agreements in question. I have made previous requests for copies of these agreements. I also note you have not replied to my letter of 17th January 1996, apart from advising me that my letter had been passed onto your clients for instructions. I again request a reply to the matters raised in that letter. Please also provide me with a copy of the Notice given by Mr. Larkin on 9th November 1996. (I assume you mean 1995.) They view you take in respect of the transfer of an interest in the patent differs from the view expressed by Button Hawdon & McMahon, Solicitors, for Mr. Larkin. (See letter 9th May 1996.) You say that "Mr. Larkin wrote to Mr. Moore in terms which did not comply with Clause 8.1(b) of the Deed". Please explain why Mr. Larkin's letter did not comply with Clause 8.1(b). You say that "Mr. Cameron did not ever receive an offer in writing". You do not suggest that he was unaware of the offer; nor do you explain his silence or that of Mr. Moore's in relation to the offer. As to your comment in relation to no "written communication" to Headland Securities Pty Ltd, Mr. Moore is Headland Securities Pty Ltd. I understand that in respect of the agreements to which you refer, you acted for all parties notwithstanding the obvious conflict of interest given the financial and commercial inequality between the parties. The terms of the agreements, on my instructions, were weighted in favour of Messrs. Moore and Cameron and Headland Securities Pty Ltd. You refer to a memorandum dated 4th December 1995. I do not have a copy of that memorandum and request that you forward me a copy of this document when forwarding copies of the other agreements. Did you prepare this document? Did you act for all parties referred to in the memorandum? Please explain how this memorandum varied the Deed of 21st April 1995, which you also say "was not consummated". Are you saying this memorandum was never executed by the parties? Mr. Larkin was the inventor without funds and the commercial experience and know how to develop and promote the invention. Mr. Moore for whom you act and on whose instructions I am advised prepared the relevant agreements is an economics graduate a qualified accountant former stock broker and a person of considerable business and finance acumen. Before Mr. Moore became involved in this matter with Mr. Larkin and Mr. Macarthur I understand he undertook some research and inquiries in relation to the product/invention and saw a "golden opportunity" for himself and his company. His own figures of projected sales and profit reflect this - a copy is attached. Mr. Moore envisaged raising capital on this venture from the public and valued a 10% shareholding at $39m. It was a joint venture where clearly no one party would take advantage of the other or in any way act dishonourably towards one another. Mr. Macarthur has at all times acted in good faith and in reliance upon the fact that Larkin (on independent legal advice) was entitled to sell his remaining interest of 25% in the patent. The offer made to your clients on 9th November 1995, was ignored. As the position now stands the parties have an equal 25% interest in the patent. Your clients may well view the sale price as a bargain price, but this only reflects the economic circumstances of Mr. Larkin and your clients' failure to take the initiative when they were, it appears, all well aware of. Larkin's offer. It is a bit late to complain now on a missed opportunity. There is also the question of waiver and estoppel in this instance and any action you clients might take would in the circumstances be unfair and not in the interest of the company or its shareholders. One could be forgiven for suggesting that to seek the declaration threatened would be pure bully boy tactics. As far as Mr. Macarthur is concerned any legal action taken would be vigorously opposed. Mr. Macarthur will as a Director of Contratech Pty Ltd continue to act in the best interest of the company and its shareholders. The company will continue to "be used as the marketing vehicle" for the patent. On my instructions Mr. Macarthur declines to "transfer his shares to the other parties". On 19 June 1996 this letter followed - "Re: Macarthur, Larkin, North Securities Pty Ltd & Others - Patents I refer to previous correspondence and in particular my letter of 14th June 1996. On my instructions Mr. Cameron for whom you act phoned Mr. Larkin twice on Monday evening and once on Tuesday morning in when he sought to influence him repudiating the agreement he entered into with Mr. Macarthur on 17th May 1995, for the sale of 25% of Mr. Larkin's interest in Patent Application PCT/AU95/000624 entitled "Contra Rotating Rotor Unit". That agreement has of course been concluded. I am told that Mr. Cameron put the following inducements to Mr. Larkin, namely (a) that time be extended to him for the repayment of loan monies by a further 12 months: (b) that he would be paid $25,000 to refund to Mr. Macarthur; and (c) that his legal fees would be paid. Mr. Larkin and Mr. Macarthur have been friends for approximately 8 years and notwithstanding the temptation, Mr. Larkin has informed Mr. Macarthur that he has no intention of reneging on the agreement concluded between them. Your clients' attempts in the circumstances to have Mr. Larkin repudiate his agreement with Mr. Macarthur are not only improper but actionable and in this regard Mr. Macarthur reserves his position. Would you please request Mr. Cameron to cease making any further such advances. A recent search on Contratech Pty Ltd with the Australian Securities Commission reveals: 1. Incorporation on 1st March 1996. 2. The directors are Warren Moore, Ross Macarthur and Ronald Cameron, all of whom were appointed on 1st March 1996. 3. The allotment of 50 ordinary shares for cash at $1.00 per share. 4. That the 50 ordinary shares were allotted Bryan Larkin on 1st March 1996. 5. That the form 207 (allotment of shares) was signed by Mr. Warren Moore and dated 1st March 1996, and in which he declared "that shares have been allotted to more than 500 people". On my instructions shares in the company should have been allocated as follows: Larkin 50 Shares Cameron 55 Shares Moore 55 Shares Macarthur 40 Shares With regard to Mr. Macarthur's shares he forwarded the company a cheque for $40 on 28th March 1996. Would you please clarify the shareholding of the company, in particular the declaration that shares have been allotted to more than 500 people. Mr. Macarthur has no knowledge of any such allotment. I also await copies of the documents previously requested. … P.S. Have just received your letter of today's date by facsimile transmission. A copy has been forwarded to Mr. Macarthur for instructions." On 24 June 1996 the defendant wrote the following letter - "Re: Macarthur, Larkin, North Securities Pty Ltd & Others - Patents I refer to my letter to you of 19th June 1996, and am advised that Mr. Cameron has again telephoned Mr. Larkin and sought to influence him in repudiating the agreement concluded with Mr. Macarthur on 17th May 1996. I am further advised that my status was raised with Mr. Larkin during this discussion in an endeavour to also influence him in siding with the interests of your clients. Mr. Larkin is aware of my status, which has of course no relevance to the issues in question. You are aware that I am not the holder of a current practising certificate. As to your letter of 19th June 1996 1. Your letter does not fully and properly address the matters referred to in my letter to you of 14th June 1996. Please do so. 2. Whilst your letter, and other correspondence, refers to the agreements and other memoranda, you are yet to provide me with the copies of these documents. Would you please do so without any further delay so that I might properly examine the questions your letters continue to raise. 3. You claim that my "communication" with you "is not privileged" and is defamatory of Warren Moore for which you seek "an apology and complete withdrawal". The allegation is denied but having regard to the threat of legal action I request you indicate: (a) the defamatory matter complained of (b) the basis upon which privilege does not exist (c) details of the publication of the defamatory matter (d) the damage allegedly suffered by Warren Moore and (e) What it is you precisely require to be withdrawn. 4. I am instructed that Ron Cameron has known Brian Larkin for a number of years. When the question of developing the patent was raised with Ron Cameron, he advised, so I'm told, that he was without the necessary funds to develop and promote the patent and as a consequence introduced Warren Moore to the parties. 5. Paragraph 2 of your letter concedes that no objection was taken to Ross Macarthur purchasing "20% of PM 8421 for $20,000". This proposal which you say was put by Mr. Moore on 4th December 1995, was after Mr. Larkin's letter of 9th November 1995. With regard to the guarantee of $20,000 this was something Mr. Macarthur was reluctant to agree to as your clients were already secured as to the remainder of Larkin's interest in the Patent under the Patent Mortgage. In addition it was viewed as an unreasonable condition. Your clients obviously declined Mr. Larkin's offer and came back with another proposal which involved inter alia their consent to Mr Macarthur taking up "20% of PM8421 for $20,000". It's a bit late in the day to now start objecting and threatening legal action. 6. Mr. Macarthur is the owner of 25% of PM 8421 and will take all steps necessary to protect that interest. 7. In paragraph 8 of your letter you refer to a debt of $62,821.74 as at 30th November 1995, owing by Larkin to your clients. In the last paragraph on page 3 you say "Our clients have already advanced in the order of $65,000 invested in this technology and their time, effort and energy". (a) Is this the same money referred to in paragraph 2? (b) If not, please provide details of the monies alleged to have been expanded by your clients "in this technology" in addition to the monies lent to Larkin. 8. At the bottom of page 2 you say "thus the legal position would appear relatively well documented and straight forward". What is the legal position you draw from the facts recited in paragraphs 1 to 8 of your letter? Messrs. Larkin, Macarthur, Moore and Cameron each hold a 25% interest in the patent and all have a vested interest in the success of its development. It is obviously in the interest of all concerned to advance one another's interest in the patent and its commercialisation without unnecessary legal action. Certainly Mr. Macarthur will do nothing to prejudice the venture and the threat of legal action is not in the best interest of the parties to this venture. I await your early reply." The defendant wrote the final letter on 6 August 1996, asking Mr Henty to reply to recent correspondence. Telephone conversations took place between Mr Henty and the defendant as well about the supply by Mr Henty to the defendant of documents concerning a patent application. However, Mr Henty made no notes of them and could not remember precisely what was said. … The family law property dispute Ms Katherine Ann Crawford, a solicitor, began acting for Mrs Helen Macarthur in relation to the settlement of a family law property dispute between Mrs Macarthur and her husband Ross Macarthur, the man for whom the defendant acted in the negotiations with Mr Henty. On 21 November 1995 Ms Crawford wrote Mr Macarthur a letter in the following terms - "Yourself and Your Wife We act on behalf of your wife who has sought our advice in relation to matters arising out of your separation. It is certainly our client's desire to resolve any of these matters between you as quickly and amicably as possible and with a minimum of legal expense. We have advised our client that in order to have constructive settlement discussions it is important that as much detail as possible be obtained about the assets and financial resources of each of you. We have also advised our client that it is necessary in these matters from each party to make full and frank disclosure of their financial position. To that end we would ask that you take this letter to your legal representative and have that person provide us with a full statement of your financial circumstances together with providing us with access to all paperwork that you have in possession which reflects your financial circumstances. It would also be of assistance if a statement was provided setting out details of each of the financial entities in which you or your wife have some interest or hold positions. You should include in the documents provided a copy of any documents relating to ownership of the property at 7 Park Road, Kenthurst. We look forward to hearing from your legal representative within 14 days." On 12 December 1995, no reply had been received, a follow-up letter was written. On 8 January 1996 the defendant wrote Ms Crawford the following letter - "Re: Macarthur v Macarthur Family Law Matter Your Ref: KAC.KES 952685 I advise that I have been consulted by Mr. Macarthur in relation to your recent correspondence. Although I have a copy of your letter of 12 December 1995, I do not have a copy of your letter of 21st November 1995. That letter was unfortunately mislaid by Mr. Macarthur. In recent months my client has made a number of overtures to his wife for a reconciliation. Given the nature of your instructions Mr. Macarthur has now come to terms with the situation and proposes to shortly commence proceedings for a dissolution of the marriage. Your client recently commenced proceedings in the Parramatta Local Court against her husband for apprehended violence under Part 15A of the Crimes Act. These proceedings were dismissed in December when the Magistrate found the proceedings to be frivolous. The stress of these unfortunate proceedings and the breakdown of a long marriage has affected Mr. Macarthur's health. He recently suffered a stroke and was discharged from Fairfield District Hospital prior to Christmas. He accordingly wishes to resolve all property matters with his wife amicably and sensibly. Preferably without litigation. Would you therefore indicate your client's wishes as to the terms of any property settlement. I am instructed that: Previous offers to Mrs. Macarthur for her financial support have been rejected. Mr. Macarthur is unaware as to how his wife is supporting herself and can only assume she is in receipt of some social security benefit. Mrs. Macarthur is unemployed and resides in her mother's home in Preston Avenue, Five Dock. I understand her mother is an elderly lady and is presently in hospital. Mr. Macarthur resides in the matrimonial home and will continue to support and pay for his children's educational, medical and other expenses. In addition he proposes to pay the mortgage payments on the property plus rates and taxes, etc. I look forward to your early reply and advice as to your client's financial circumstances. Given Mr. Macarthur's present ill health, it is essential this matter be resolved without litigation. He is under doctor's orders to avoid stress." On 10 January 1996 Ms Crawford sent the following letter to the defendant - "Macarthur Thank you for your letter dated 8 January 1996. I enclose a copy of our letter to your client dated 21 November 1995. It would assist in settlement of this matter if you could provide the information requested. We will otherwise seek our client's instructions in relation to your letter and advise you further as soon as possible." On 5 February 1996 the defendant replied as follows - "Re: Macarthur v Macarthur Family Law Matter Your Ref: KAC.KES 952685 I refer to previous correspondence and set out the following financial details. 1. Mr. & Mrs. Macarthur are equal (and only ) shareholders in the following companies: (a) Liquid Waste Management Pty Ltd. This Company has no assets and no liabilities. It no longer trades. (b) Queensland Fuel Haulage Pty Ltd. Its assets comprise a Prime Mover and Trailer and a Jaguar motor vehicle. The vehicles are under lease and the pay out figure would roughly equal present market value. (c) Zamitelle Pty Ltd. Its assets comprise: (i) Tarago Van valued at approximately $10,000 (unencumbered). (ii) Daf Twin Steer truck with vacuum tank, valued at approximately $40,000 (unencumbered). 2. Mr. Macarthur has an interest in a Superannuation Fund managed by the AMP Society. He is not aware of the value of his interest in the Fund. He is the sole beneficiary. 3. Rathau Pty Ltd as trustee for the Ross William and Helen Leona Macarthur Family Trust is the registered proprietor of the former matrimonial home at 7 Park Road, Kenthurst, N.S.W. The beneficiaries of the trust are the 4 children of the marriage in equal shares. Market Value $490,000 Mortgage to Teachers Health Investments 285,000 $205,000 Contents of home, assessed at 50,000 $255,000