Qihua Zhao v Sheng Yu Zhang & Anor [2007] NSWSC 891

New South Wales Supreme Court

CITATION : Qihua Zhao v Sheng Yu Zhang & Anor [2007] NSWSC 891

HEARING DATE(S) : 30.07.07

JUDGMENT DATE : 16 August 2007

JUDGMENT OF : Nicholas J

DECISION : para 41

CATCHWORDS : Legal practitioners - whether opponent's solicitor should be restrained from acting - whether information claimed to be confidential identified - test to be applied - relevant considerations

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 Belan v Casey [2002] NSWSC 58 British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 D & J Constructions Pty Ltd v Head & Ors (1987) 9 NSWLR 118 CASES CITED : In the Marriage of L P and K D McMillan (2000) 26 Fam LR 653 In the Marriage of Thevenaz (1986) 11 Fam LR 95 Kallinocos & Anor v Hunt & Ors (2005) 64 NSWLR 561 Mancini v Mancini [1999] NSWSC 800 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 The Law Society of NSW v Holt [2003] NSWSC 629

Qihua Zhao - plaintiff PARTIES : Sheng Yu Zhang - first defendant Shujin Zhou - second defendant

FILE NUMBER(S) : SC 1579/07

M Bradford - plaintiff COUNSEL : submitting appearance - first defendant A Giveny - second defendant

Stephen Miller Solicitor - plaintiff SOLICITORS : submitting appearance - first defendant Armstrong Legal - second defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Nicholas J

16 August 2007

1579/07 Qihua Zhao v Sheng Yu Zhang & Anor JUDGMENT 1 His Honour: This is an application by the second defendant, Shujin Zhou, to restrain Mr Stephen Miller, solicitor, (the solicitor) from acting for the plaintiff, Qihua Zhao, in these proceedings. It was based on the proposition that the solicitor was in possession of information which was confidential to the second defendant and relevant to the issues in these proceedings in which the use of such information would be disadvantageous to her. 2 These proceedings were commenced on 22 February 2007. The plaintiff is the brother-in-law of the first defendant. The first and second defendants are married but have separated. They are the joint registered proprietors of the property situated at no. 27 High Street, Canterbury (the property). The plaintiff provided most, if not all, of the money for the purchase of the property. He claims that the money was a loan pursuant to an agreement with the first defendant, and that the defendants hold the property on trust for him, and seeks an order that they transfer the property to him. He also claims monies payable to him by the defendants. 3 On 21 March 2007 the second defendant filed a defence in which, relevantly, she denies any loan agreement, and pleads that the funds advanced by the plaintiff to the first defendant were a gift. She adheres to this position in her amended defence filed 8 May 2007. 4 On 27 March 2007 the first defendant filed a notice of appearance in which he submits to the making of all orders sought, and to the giving or entry of judgment in respect of all claims made, save as to costs. 5 In support of the application was the second defendant's affidavit of 9 July 2007. In opposition were read the affidavits of the solicitor of 27 July 2007, of Yongmei Guo of 26 July 2007, and of the first defendant of 26 July 2007. None of the deponents was required for cross-examination. The facts 6 The following history was substantially accepted and, in any event, was established on the evidence. 7 On 1 January 1982 the first and second defendants were married and subsequently came to Australia. On 31 October 2000 they purchased the property which became the matrimonial home. On about 20 October 2005 they separated. 8 In about early April 2006 the second defendant met Yongmei Guo, the solicitor's wife, who arranged a meeting with the solicitor to discuss her matrimonial affairs. On 8 April 2006 a meeting took place between the second defendant and the solicitor at his office at no. 368 Sussex Street, Sydney. Also present were Jane Zhang, the second defendant's daughter, and Yongmei Guo, each of whom may have acted as an interpreter when required. 9 According to the second defendant (affidavit, para 5), she provided to the solicitor details in relation to her assets and liabilities, including information in respect of the purchase of the property. She told him that the first defendant had not disclosed to her any of the information in relation to the receipt of the gift of monies that he used to purchase the property. She did not produce any documentation to him, and said she answered his questions in relation to her matter as best she could. 10 She described the information provided to the solicitor in the following terms (affidavit, para 10): "10 During the conference I provided Mr Miller with the following details: (a) Details of my marriage, for example the date of marriage, date of separation, the length of the marriage, number of children, etc; (b) Details surrounding the circumstances of my residence overseas and in Australia; (c) Details surrounding the circumstances of Sheng's residence overseas and in Australia; (d) Details of the assets and liabilities Sheng and I had when we resided overseas and when we resided in Australia; (e) Details of Sheng's employment in Australia; (f) Details of Sheng's income; (g) Details of my income; (h) Details of the financial relationship between Sheng and I while he was residing in Australia and I was still residing overseas, before I commenced residing in Australia; (i) Details of The Property and the circumstances surrounding the money that financed The Property."