Campbell v Illawarra Golf Club Pty Ltd

Supreme Court of NSW|2012-10-19|Before: Garling J

Judgment 1Christopher Robert Campbell and Vaughan Neil Strawbridge ("the Receivers") were appointed by the National Australia Bank Limited ("the NAB") on 30 June 2011 of a property which is at Maddens Plains in New South Wales. It is convenient, without setting out the title detail of the property, in accordance with the Court's privacy policy, to refer to the property as the Illawarra Golf Course (the "Property"). 2The Receivers were appointed pursuant to a power in the Bank arising from a mortgage entered into by Mr Christopher Brian Birch and Ms Sandra Lee Tarrant, who are now, and were at all relevant times in the past, the registered proprietors of the Property ("the owners"). 3Having mortgaged the Property to the NAB, the owners fell into default and, as a consequence, the NAB appointed the Receivers to take possession of the Property. 4Proceedings were commenced in 2011 in this Court by the Receivers against four separate parties. The first defendant was the Illawarra Golf Club Pty Limited which formerly operated the golf club business and owned equipment which enabled it so to do. 5The second defendant in the proceedings is Mr David Hawkins who was sued by the Receivers upon the basis that, notwithstanding a demand that he vacate the property, he remained in occupation of it. 6The third and fourth defendants, Mr Richard Doney and Mr Stephen Doney, were sued as occupants. 7The proceedings have been resolved with respect to the first defendant, the Illawarra Golf Club Pty Limited, which is now in liquidation, and also with the third and fourth defendants. The only active proceedings remaining are those between the Receivers and Mr Hawkins. 8On the day that the proceedings between the Receivers and Mr Hawkins were fixed to be heard, Mr Hawkins indicated that he wished to challenge the retainer of Minter Ellison, Solicitors, whose partner, Mr James Beaton, was the solicitor on the record for the Receivers. Directions were made to enable that challenge to be formalised, and for evidence relevant to that question to be filed. 9This judgment deals with the Notice of Motion filed on 15 august 2012, by Mr Hawkins to challenge the retainer of Minter Ellison by the Receiver. 10For the reasons which are set out in this judgment, I would dismiss the motion and order that Mr Hawkins pay the Receivers' costs.

Notice of Motion 11The Notice of Motion was filed on 15 August 2012, and sought the following orders: "1. An order that Minter Ellison, the lawyers for the first and second plaintiffs, having acted for the second defendant in relation to the subject property, be declared to have a conflict of interest by continuing to legally represent the first and second plaintiffs. 2. An order that the first and second plaintiffs retain different legal representation. 3. Such other order that the Court deems appropriate in the circumstances."

Factual background 12The Property, which was located in the local government area for which the Wollongong City Council had responsibility, was zoned for use as a "golf resort" under the Wollongong Local Environmental Plan No.38. 13The land upon which Illawarra Golf Club operated included freehold land which was owned by the owners and also Crown land, over which the Illawarra Golf Club had a licence for use. 14Prior to 2004, a proposal was formulated for the development of the Illawarra Golf Club site into a new golf resort. In general terms, what was proposed was that there would be a nine hole golf course, a clubhouse with a golf shop, restaurant, bar and other facilities, short term accommodation consisting of about 100 rooms, 200 homes for permanent residents and 100 retirement dwellings or serviced apartments. It was anticipated that the golf course would occupy 40-45 hectares and the 400 unit residential complex would occupy about 10 hectares. 15In order to enable this development to occur, the owners entered into a series of agreements in August 2004. 16The first agreement was entitled "Development Application Agreement". In this agreement the owners were one of the parties, two companies associated with each of the owners, Snad Pty Limited, and C B Birch Pty Limited were also parties, which were described in that agreement as the "promoters", and Links Illawarra Developments Pty Limited, a Victorian company which it was said had "established credentials in seeking and obtaining development approval for mixed use golf course and residential developments". 17Links Illawarra Developments Pty Ltd was a company which formed part of a corporate group which can conveniently be called the Links Living Group. Other companies within the Links Living Group had separate roles to play in some of the steps being taken in the development project. All companies in the Links Living Group were in the same interest in this project. It is convenient, unless absolutely necessary, to refer to the Links Living Group, by that name, rather than the names of the individual companies. 18The background to that Development Application Agreement was described in the following terms: "1.1 The owners are the owners of the property known as Illawarra Golf Club and located at the west side of Princes Highway, Helensburgh, New South Wales (Property). 1.2 Links has establish credentials in seeking and obtaining development approval for mixed use golf course and residential developments. 1.3 The promoters have local contacts that will assist in seeking any development approval for the property. 1.4 An entity related to Links has an option to purchase the property and Links has been engaged to provide services to that entity in relation to the property. 1.5 Links wishes to seek development approval for a mixed use golf course and residential developments at the property (Application). 1.6 The promoters have agreed to permit Links to seek approval of the application generally in accordance with the terms of this agreement." 19The Agreement went on to set out the terms upon which the development application would be lodged, and development consent would be sought. 20Some other relevant clauses of the Agreement are as follows: 2.2 The owners and promoters have agreed to permit and support Links in seeking approval of the application in consideration for Links agreeing to pay a success fee to the promoters if the application is approved. 2.3 The parties agree to work together to obtain approval of the application in accordance with the provisions of this agreement. 2.4 Links will: 2.4.1 Lodge a development application with the relevant statutory body to seek approval to develop the property in a way determined by Links in its discretion following consultation with the promoters ...; 2.4.2 Report regularly to the promoters about the progress of the application and take into account reasonable suggestions made by the promoters in relation to the application; and 2.4.3 Make all final decisions in relation to the application. ... 2.6 The promoters and the owners agree to assist Links in pursuing the application by: 2.6.1 Executing any document that Links believes necessary or desirable in connection with the application; .... 2.6.3 Will not object to the application whether directly or indirectly; .... 2.6.5 Permitting Links to make decisions it deems necessary in relation to the prosecution of the application ...; and 2.6.6 Abiding by any decision made by Links in relation to the application." 21The parties agreed to share equally in the cost of seeking and/or obtaining the approval for the application. There was a sunset date specified of two years from the commencement date of the agreement. However, Links Living was the only party entitled to elect to terminate the agreement. Clause 6.1 read: "If the application is not approved to Links' satisfaction within 2 years of the date of this agreement, then Links may elect to terminate this agreement by notice in writing to the owners and the promoters." 22Clause 8 of the Agreement is of importance. It dealt with the relationship between the contracting parties. It provided that nothing in the Agreement should be read or construed as placing the parties " ... in the relationship of a partnership or of a principal and agent". It was expressly agreed between the contracting parties that each of them were independent contracting parties and that, otherwise than as specifically provided in the agreement, "8.1.3 ... neither of the parties shall have any authority or power for or on behalf of the other party to enter into any contracts, to pledge any credit, to incur any liabilities, to assume any obligations or to make any warranties or representations." 23At the same time, another document entitled a "Put and Call Option Deed" was entered into between Links Illawarra Holdings Pty Limited and Ms Tarrant and Mr Birch by which, in short, upon all of the terms and conditions set out in the document, the owners granted Links Living an option to acquire the property. 24As well, the owners who were called the grantors, were given a put option whereby they might require Links Living to purchase the property. 25The third agreement entered into in August 2004, was a "Loan Agreement" whereby a company, in the Links Living Group, agreed to make available a financial facility to the owners by making advances to them, up to a limit of $5 million. 26The final agreement in the suite of agreements in August 2004, was a "Sale of Business Agreement", whereby the owners agreed to sell to Links Living, the business known as the "Illawarra Golf Club", including its goodwill, fixed assets, trading stock, leases, business records and the like. 27Mr Hawkins is a party to this agreement, but not to any of the others. He is a party to this agreement because, so it appears from the Recitals, he had recommended to the owners who were the vendors "... that they enter into this agreement in consideration for a fee, and the agreement records that he has agreed to be a party to the agreement ... in order to be bound with the vendor by the warranties and in order to provide certain guarantees and indemnities in favour of the purchaser in relation to the obligations of the vendor under this agreement". 28The warranties to which reference was made are set out extensively in clause 12. There is no need to identify the terms of them. In clause 13, the guarantees provided by Mr Hawkins are set out. 29In general, Mr Hawkins guaranteed to Links Illawarra Holdings Pty Limited: "13.1 ... the due payment of all monies covenanted or agreed to be paid by the vendors under this agreement and the due performance, observance and fulfilment by the vendors of all covenants and obligations contained in this agreement and on the part of the vendors to be performed, observed and fulfilled". 30Attempting to summarise these four agreements would not be to do each of them justice, but broadly speaking, it would appear that Ms Tarrant and Mr Birch, as the owners of the land, were engaging through these agreements with Links Illawarra Developments Pty Ltd or other companies in the Links Living Group, with a view to obtaining a development consent allowing the development and expansion of the Illawarra Golf Club. 31Companies associated with the owners were to obtain a benefit in the event of the development consent being granted. In the event that all other relevant conditions were fulfilled, and the Sale of Business Agreement was to proceed to completion, Mr Hawkins, having been paid a fee by the owners, was to guarantee the performance of those obligations. Money for the project was to be provided by the Links Living Group, in the first instance by a loan to the owners, and it was a matter for them and the relevant Links Living Group company to share jointly the costs of obtaining a development consent. 32The Links Living Group had the running and control of the application for consent; it had the authority to make all decisions, but it was obliged to consult with the owners. The owners appointed Mr Hawkins as their representative to deal with the Links Living Group and it proceeded with obtaining development consent.

Involvement with Minter Ellison 33A letter dated 23 December 2004, from The Planning Group to Links Living, refers to a meeting, which occurred on 16 December 2004, in Sydney. The meeting seems to have centred upon advice from The Planning Group with respect to the Illawarra Golf Resort Development project. The letter encloses advice, which is not before the Court. The Planning Group recommended to Links Living that it should retain the services of either Mr John Whitehouse of Minter Ellison in Sydney, or else Mr Peter Briggs of Clayton Utz in Sydney to provide advice about the development application. The letter went on to provide a list of other sub-consultants appropriate for the project. 34In March 2005, Mr Whitehouse of Minter Ellison was approached by the General Manager of the Links Living Group of companies, Mr Zoran Pavlovic, to provide legal services to Links Living in connection with the project. 35On 3 March 2005, Mr Whitehouse sent to Mr Pavlovic a costs agreement, which apparently complied with the Legal Profession Act 1987, which then applied, confirming the retainer of Minter Ellison. 36It was in the following terms: "Dear Zoran, Darkes Forrest Golf Resort Costs Agreement Thank you for your instructions to act for Links - Illawarra Developments Pty Limited. This is to confirm my understanding of the scope of work and to set out the basis of our firm's charges for the work to be done in this matter. Scope of Work

We will: Advise you in relation to the development application process for a golf resort at Darkes Forrest, Wollongong." 37Mr Hawkins confirmed in evidence that neither he, nor the owners, nor any of the companies associated with the Owners mentioned in any of the various agreements, received a similar costs agreement from Minter Ellison that reflected the terms of that dated 3 March 2005 addressed to Mr Pavlovic. 38After 3 March 2005, and up until 13 January 2009, Minter Ellison continued to act and provide advice in relation to the development application process and to assist in the preparation of the development application. This was, not unexpectedly, complex. It involved dealings with the Wollongong City Council, the NSW Department of Planning, the NSW Minister for Lands, and various consultants. The development application process went through a number of stages, the detail of which is not immediately relevant, but which ultimately resulted on 13 January 2009, in a development consent being provided to Links Illawarra Developments Pty Limited. 39During the course of this almost four year period, both Mr Whitehouse, and a solicitor under his supervision, Mr Ball, met with Mr Pavlovic, other representatives of Links Living, and Mr Hawkins. Mr Whitehouse understood that Mr Hawkins was representing the interests of the owners of the property. Mr Whitehouse accepts that he was instructed by Mr Pavlovic to "... keep the registered proprietors and their representative (Mr Hawkins) 'in the loop' regarding the progress of the development application". 40Over the course of 2005, through to at least September 2008, it appears that Minter Ellison sent a copy of a number of documents to Mr Hawkins. I am satisfied that they were sent in compliance with the instructions from Mr Pavlovic to which I have just referred. 41According to the evidence, after the initial meeting at the offices of Minter Ellison, at which Mr Whitehouse, Mr Ball, Mr Pavlovic and Mr Hawkins were present, there were a further two meetings which Mr Hawkins attended at the offices of Minter Ellison, which related to the development application. 42Mr Hawkins records the first meeting as occurring on 16 March 2005. He also records a further meeting on 23 November 2006. Both of these meetings took place at the offices of Minter Ellison. The evidence identifies the possibility of one further meeting, which it is said Mr Whitehouse attended, but which did not happen at the officers of Minter Ellison. 43It is clear that The Planning Group kept minutes of meetings and conferences of what was described as the "project control group" and that Mr Hawkins attended meetings of this group. The only minutes of meetings of this group that are in evidence, do not record the attendance of either Mr Whitehouse, Mr Ball or any other representative of Minter Ellison. The probabilities are that the minutes of the meetings of the project control group were forwarded to Minter Ellison. 44Mr Hawkins deposes, and I accept, that specific matters discussed at The Project Control Group were referred from time to time, as appropriate, to Minter Ellison for their advice. As well, the evidence shows that from time to time Mr Hawkins attended at Minter Ellison to collect documents and deliver them to other bodies, and undertook steps that Minter Ellison suggested ought be done. 45In his affidavit of 15 August 2012, Mr Hawkins refers generally to the fact that there were other meetings in the course of the development application process, which he attended at Minter Ellison. No documents are produced which support the occurrence of those meetings. In the absence of anything more specific, including the identification of any documents presented to or discussed at those meetings, if they occurred, I am not in a position to make any findings about the contents of what transpired in those meetings. On the probabilities, there are likely to have been some other meetings that took place. It seems likely that some issue or issues in the course of the development were discussed. Beyond so saying, there is no material that enables me to make any additional findings of fact about what transpired at those meetings. 46In his affidavit of 10 September 2012, Mr Hawkins deposes to the fact that he had kept a diary and file notes relating to his contact with Minter Ellison. The details, apparently from his diary and file notes, are then set out. 47With respect to the first meeting at the offices of Minter Ellison, Mr Hawkins gives an account of his recollection of that meeting at paragraph 25. He does not annexe any file note or copy of a diary note. Having regard to the structure of his affidavit, I would conclude that he does not have a diary note, or file note, which records the contents of what occurred at that meeting, other than the fact that a meeting occurred. 48In those circumstances, I conclude that the contents of paragraph 25 of his affidavit of 10 September 2012, are the product of his unaided recollection. There were a number of occasions in his evidence where Mr Hawkins accepted that his, previously unaided, recollection was erroneous. Two particular matters can be identified. 49Earlier in this judgment I referred to a series of agreements that were entered into by the registered proprietors, one or more of the Links Living Group Companies, and one involving Mr Hawkins. There is no dispute that these agreements were entered into in August 2004. However, in both of his affidavits, Mr Hawkins refers to these agreements as being entered into in August 2005. In this unaided recollection, he was clearly mistaken. 50Apparently based on the time when these agreements were entered into, Mr Hawkins deposes that copies of the agreements, and "... the funding arrangements negotiated by the Links Living Group with the National Australia Bank" were provided to Minter Ellison. There is no basis, in the facts proved before me, to conclude that this is what occurred. On the contrary, it appears that the agreements were executed before The Planning Group were retained to advise on the development application process. The Planning Group recommended the retainer of Mr Whitehouse of Minter Ellison, and he was then retained as a result of that recommendation. Mr Whitehouse deposes, and I accept, that he was never given copies of these agreements. I am well satisfied that Mr Hawkins' version of the facts in his affidavit was incorrect. 51A second, and not unimportant error that Mr Hawkins made from his unaided recollection, was with respect to an email sent by him to Minter Ellison on 8 November 2009. In his affidavit of 10 September 2012, he deposes to the fact that he sent this email to Minter Ellison and that he received no response to it at all. The evidence is to the contrary. 52According to the affidavit of Mr Ian Walker, a partner of Minter Ellison based in Melbourne, he received the email. The email informed Mr Walker that Mr Hawkins was the appointed representative for the owners of the Illawarra Golf Club property, and that he had received notice from the owners that Minter Ellison were acting for the NAB. The email then said this: "As a preliminary issue, and one that would need to be resolved immediately due to the presumption of a substantial conflict of interest, Minter Ellison has acted for Links and the owners of Illawarra Golf Club and as such I am at a loss as to how Minter Ellison could now act for the bank in proceedings against Links, Mr Birch and Ms Tarrant." 53Mr Hawkins deposed that he received no response to this. As the affidavit of Mr Walker shows, not only did he receive a response, but in a further email, he acknowledged receipt of that response and joined in further debate with Mr Walker about the subject of a personal conflict of interest, as the following emails show. 54On 13 November 2009, Mr Walker responded to Mr Hawkins' email saying: "We refer to your email below and confirm that we act for National Australia Bank Limited (the Bank). We understand from your email that you are authorised to represent both Mr Christopher Birch and Ms Sandy Tarrant. We take conflict of issues very seriously. We have rechecked our conflict searches and confirm that there is no conflict that would prevent us from acting for the Bank. Our Sydney office has acted for Links Projects (Aust) Pty Limited in relation to a development application relating to the Illawarra Golf Club, but we did not act for the owners of the Illawarra Golf Club or for the Links entity that is in default." 55Mr Hawkins responded on Monday 16 November 2009, in the following terms: "1. I refer to your email below.
I believe that there is a real conflict of interest and advise that the owners formally object to your representation.
Given that I have had several meetings with your Sydney office representing the owners, it is quite unbelievable to suggest that no such conflict exists.
I am also aware that the owners have on at least two occasions executed a form of consent to the development application, the original and then the amended form, and that these forms were provided to and returned by, the owners.
The owners claim that your firm, regardless of its location, has acted for the owners giving an ordinary meaning of that phrase, and that you should not act for any party claiming any interest adverse to the owners." 56It is clear, and Mr Hawkins in cross-examination accepted, that his affidavit, and his unaided recollection on this issue were erroneous. It formed an important and central issue in the evidence which he tendered to the Court, and upon which he relied. 57Given the nature of the proceedings, and the need for precision with respect to findings, I am not prepared to accept, the evidence tendered by Mr Hawkins where it is not corroborated by a contemporaneous document. Notwithstanding his apparent honesty in the giving of his evidence, I am not satisfied that his unaided recollection provides a reliable source of evidentiary material in this case. 58It is appropriate to summarise the features of the relationship between Mr Hawkins and Minter Ellison. They were these: (1)Minter Ellison acted for Links Illawarra Development Pty Ltd. (2)It communicated with, and received instructions from, Mr Zoran Pavlovic on behalf of Links Illawarra. Mr Pavlovic was an executive of a company called Links Projects (Aust) Pty Ltd. There was thus, some confusion as to whether Minter Ellison was acting for Links Illawarra Developments Pty Ltd, or Links Projects (Aust) Pty Ltd. But they were acting for corporate entities that were a part of the Links Living Group. (3)Links Illawarra was the party entitled to make the application for development consent and by agreement between all parties having an interest in the outcome of that development consent, whilst Links Illawarra was obliged to consult with those other parties, it had the final authority to make decisions with respect to the progress of the application and what should be done with it. (4)The letter of engagement, or costs agreement, issued by Minter Ellison was issued to Links Illawarra. (5)Initially, Mr Hawkins asserted that a conflict of interest arose because Minter Ellison had acted for the owners, and because he was their representative. The account for Minter Ellison's services has not been tendered in evidence. However, having regard to the terms of the costs agreement, I would be prepared to infer that it was sent to Mr Pavlovic. There is no doubt that the owners were obliged to pay a proportion of that, and other expenses, incurred in the development application process. (6)There is no evidence that Minter Ellison were retained to provide advice specifically to the owners, or Mr Hawkins, outside of their retainer to advise on the development application process, and the appropriate steps to take. (7)Mr Hawkins received from Minter Ellison details of what occurred and what was occurring, including their advice in his capacity as the representative of the owners, and at the directives of Mr Pavlovic and other executives of Links Living. He did not receive it in any other capacity. 59In my opinion, Mr Hawkins was not a client of Minter Ellison. The owners were not clients of Minter Ellison. Minter Ellison's retainer was with Links Living, and no one else. Accordingly, I am not satisfied that there is any factual basis for the relief sought by Mr Hawkins with respect to Minter Ellison have formerly acted as his solicitor, or else the solicitors for the owners. 60Even if Mr Hawkins was a client of Minter Ellison, the retainer ceased on 13 January 2009 when consent was received to the development application. Mr Hawkins, in his submissions to the Court, accepted that this as so. Accordingly, I would readily conclude that at the time the current proceedings were commenced by the Receivers in 2011, there was no existing solicitor/client relationship between Minter Ellison and Mr Hawkins.

Confidential information 61Mr Hawkins asserts that he provided confidential information to Minter Ellison in the course of the period between 2005 and 2009, which remains in their possession. Minter Ellison denies receiving any confidential information. 62In paragraph 4 of his first affidavit of 15 August 2012, Mr Hawkins says that he provided information to Mr Whitehouse and Mr Ball which fell within the following broad subject matters, or descriptions: (a)the proposed sale of the Illawarra Golf Club business, and the property, to the Links Living Group and financial arrangements associated with that sale; (b)the interim funding arrangements made by the Links Living Group with its bank, the National Australia Bank; and (c)information relating to the redevelopment of the Illawarra Golf Club, and the development project generally. 63There is no doubt that Minter Ellison were given information relevant to the redevelopment of the Illawarra Golf Club and the development project generally. It was that material upon which they provided their advice. 64But the information was not confidential to Mr Hawkins. It was provided to Minter Ellison by the Links Living Group and much of it, although not all of it, were documents which were or are now in the possession of unrelated parties such as The Planning Group, the NSW Department of Planning, and the Wollongong City Council. Mr Hawkins did not identify any particular document with which Mr Whitehouse and Mr Ball were provided, or the contents of any particular document with which they were provided in connection with the development that he asserted was confidential or else contained confidential instructions. There is no doubt that Minter Ellison provided legal advice to Links Living, a copy of which was also provided to Mr Hawkins in his capacity as the representative of the owners. 65To the extent that that advice was confidential, Mr Hawkins has revealed the substance of it in the course of his affidavit evidence in this case. Those matters are now no longer confidential, nor could Mr Hawkins maintain any ongoing confidentiality in such documents. 66Mr Hawkins suggests that Minter Ellison was provided with documents dealing with the proposed sale of the business and the property to Links Living Group and all financial arrangements associated with that sale. Mr Whitehouse and Mr Ball deny that they received any such documents. 67Mr Hawkins has not produced any evidence to support his assertion that such information was provided to Mr Whitehouse and Mr Ball. He did not seek to cross-examine Mr Whitehouse to challenge his denial that he had received any such documents. 68On the one hand, I have an unsupported assertion that such documents were given to Mr Whitehouse, which is met by a firm, and unchallenged, denial that this was not the case. I am not persuaded in all of the circumstances that I should find, as Mr Hawkins submits I should, that such documents were provided to Minter Ellison. I do not do so because I am not satisfied that they were. 69The final category of documents are said to be those associated with or relating to interim funding arrangements, which were ones that related to the affairs of Links Living, for whom Maddox Lawyers acted and the NAB provided funds. Mr Hawkins gives evidence that included within this group, were various documents containing confidential evidence about the assets and liabilities of each of the owners, his assets and liabilities and other material going to the financial viability of the development project. 70Mr Hawkins' affidavit of 10 September 2012, notes that in October 2005, after a conversation with Mr Pavlovic, he sought an alternate loan facility for the owners in the event that Links Living failed to obtain development consent. He says that he personally presented loan applications to three banks, one of which was the NAB. He then details the fact that in October 2005, he met with Mr Greg Nosworthy at the NAB in Sydney and provided him with a good deal of financial information, apparently including a statement of financial affairs for the owners and himself, and details of the existing loan facility provided by NAB to the Links Living Group. 71It appears that these negotiations and discussions took place directly between a representative of the NAB and Mr Hawkins. Minter Ellison were not involved in those discussions. 72Further in his affidavit, he notes that he "discussed the extension of the financial arrangements with Mr Whitehouse and Mr Ball...", but in those discussions that he did not seek any advice from either Mr Whitehouse or Mr Ball about the extension of the facility. It does not appear from the evidence relating to these discussions that any confidential information of the kind previously described as falling within the term "financial information", was in fact given to Mr Whitehouse or Mr Ball, rather all that I can infer from this evidence is that Mr Hawkins disclosed the fact of the negotiations and not the content. 73It further appears from his affidavit of 10 September 2012, that in January 2006 the Links Living Group appointed the NAB to advise it in relation to new capital raising options, including a potential float of the group. It is not clear, but I accept that it is likely, that in the course of Links Living Group calling upon the NAB to provide advice to it with respect to capital raising, that financial details of the project at the Illawarra Golf Club may have been revealed. 74Again, although it is not clear, it is entirely possible that Minter Ellison were acting for the NAB in the course of those arrangements. Even assuming they were, and that is not clearly established, there has been no confidential information identified said to have been conveyed to Minter Ellison other than by the Bank. Since the Receivers are appointed by the Bank, the Bank is entitled, subject to any contracted obligation with the Links Living Group, or any obligation of confidence owed to Links Living, to give the material and information to Minter Ellison. The evidence before the Court does not reveal the existence of any of these obligations. 75Finally, it appears from the evidence of Mr Walker, a partner at Minter Ellison, that the first contact he had with the NAB in terms of receiving instructions, was in around August 2009. These instructions led to, amongst other things, the exchange of emails to which I have earlier made reference. 76From the time that Minter Ellison commenced to act for the NAB, at which time the retainer of Minter Ellison by the Links Illawarra Group had terminated, and by some months, any information provided to Minter Ellison came from the NAB. That information is not confidential, in the hands of Minter Ellison and it provides no reason for it to preclude it from acting.

Principles of law 77The submissions from Mr Hawkins in his affidavit filed 10 September 2012, suggest a number of legal bases for the relief which he seeks. These are: (a)confidential information has been communicated by him to Minter Ellison in the course of a solicitor and client re partnership, or else whilst Minter Ellison were acting for Links Living Group, which is relevant to the current proceedings and would not otherwise be available to the Receivers; (b)Minter Ellison have a fiduciary duty to the owners and to himself derived "...from what they undertook to provide by accepting instructions from both the Links Living Group, the registered owners and myself"; (c)Minter Ellison have a duty of confidentiality to Mr Hawkins and the owners, and should not be in a position "...whereby information given in confidence to either Minter Ellison or the National Australia Bank could be accessed in these proceedings"; (d)Minter Ellison have a duty of ongoing loyalty to the owners and Mr Hawkins and that by acting for another party in these proceedings, they are in breach of that duty of ongoing loyalty.

Legal principles 78In Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222, Lord Millet said at 234-235: "Where the court's intervention is sought by a former client, however, the position is entirely different. The court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence. Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case." 79Before the decision of the House of Lords in Prince Jefri, authorities supported three bases for granting an injunction in circumstances such as the present. They were: (a)the breach of a duty to protect confidential information provided by the client to a lawyer in the course of the lawyer/client relationship: see Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 42 FCR 307 (b)preventing a breach of an asserted fiduciary duty of loyalty owed by the lawyer to a former client notwithstanding the termination of a retainer: Wan v McDonald [1992] FCA 4; (1992) 33 FCR 491. (c)Where the Court acting in its inherent jurisdiction over solicitors considers it necessary to issue such an injunction in order to ensure the due administration of justice: Grimwade v Meagher [1995] 1 VR 446. 80However with the exception of a number of decisions in the Supreme Court of Victoria to which it is unnecessary to refer, the principles articulated in Prince Jefri, are now followed. 81In a judgment of this Court, Kallinicos & anor v Hunt & ors. [2005] NSWSC 1181; (2005) 64 NSWLR 561, Brereton J reviewed the position of the authorities up to that point in time and concluded in the following terms (omitting full case references), with which I express my respectful agreement: "76 The foregoing authorities establish the following:- During the subsistence of a retainer, where the court's intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests [Prince Jefri]. Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) [Prince Jefri]. After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court's intervention, such duty having come to an end with the retainer [Prince Jefri; Belan v Casey; Photocure; British American Tobacco; Asia Pacific Telecommunications; contra Spincode; McVeigh; Sent]. However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence. The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications]. The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott]. Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause [Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott]. The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [Black v Taylor; Bowen v Stott]. " 82As can be seen from Prince Jefri, when dealing with a circumstance where a solicitor's retainer has come to an end, the issue is whether a plaintiff can show that: (a)the solicitor is in possession of information which is confidential to the person, and to the disclosure of which he has not consented; and (b)that the information is or may be relevant to the matter in which it is sought to restrain the solicitor from acting contrary to the former client's interest. 83In considering this test, the question is whether and to what extent, the confidential information needs to be identified. Drummond J said of this issue in Carindale Country Club Estate Pty Ltd v Astill & Ors [1993] FCA 218; (1993) 42 FCR 307 at [31]: "It is a basic requirement that before material will be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms: Corrs Pavey Whiting & Byne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434, 443 and cf. O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 327. The requirement is insisted upon even though it may necessitate disclosing to the Court the very information the confidentiality of which it is sought to preserve by the action. This requirement has its foundation in the need for the Court to be able to frame a clear injunction, should relief against misuse of confidential information be granted ... But the requirement goes to a matter more fundamental than that: 'The more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the Court to satisfy itself that information so described was imparted or received or attained by a defendant in circumstances which give rise to an obligation of confidence'. Independent Management Resources Pty Ltd v Brown (1987) VR 605 at 609.." 84As Jenkinson J said in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at [14]: "... it is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to important an obligation of confidence; and (iv) there is actual or threatened misuse of that information. ..." These principles apply to a case such as the present.

Issues in the proceedings 85In order to understand the relevant test for confidentiality of information, it is necessary also to understand the particular issues joined in the proceedings. As I have earlier explained, the Receivers seek possession of the property at Maddens Plains as a consequence of a default by the owners of their obligations to the NAB pursuant to the mortgage. 86Mr Hawkins claims to be entitled to remain in occupation of the property by reason of an agreement which he has reached with owners to be employed as the golf course superintendent. It is not clear whether this contract is with the owner themselves, or if it was with Illawarra Golf Club Pty Ltd, which is now in liquidation. However, for present purposes, since the Golf Club is in liquidation, I will assume it is the former of these two alternatives. 87Mr Hawkins in his defence also raises the following matters, and identifies them as being in dispute: (a)whether the receivers were properly appointed; (b)whether the receivers have any entitlement to possession; (c)whether such claims as he has are superior to those of the receiver; and (d)whether the agreement by which the receivers have taken possession of the property and business was unlawful. 88The mortgage under which the Receivers are appointed, which was entered into by the registered proprietors, gives the NAB the following rights: "1. On demand in writing to the Mortgagor by the Bank the Mortgagor will pay the amount owing provided that where it is agreed in writing between the Mortgagor and the Bank that the payment of the amount owing or any part thereof should be made other than on demand at any time (the Mortgagor not having defaulted or being in default) the Bank agrees not to make for so much of the amount owing as is affected by such agreement except in accordance with that agreement or this Mortgage. 2.The Mortgagor agrees and acknowledges that: (a) this Mortgage is not executed in consequence of any representation, promise or statement by the Bank, or anyone on behalf of the Bank, other than any representation, promise or statement expressly or by implication contained in this Mortgage, and that this Mortgage is not entered into upon or subject to any condition not herein expressed or implied, and (b) no person has any authority to add to, contradict or vary the terms of this Mortgage, or to waive any of its provisions, otherwise than by an instrument executed by the Bank by its duly appointed Attorney. 3. The Mortgagor agrees with the Bank that the provisions in the memorandum filed in the Land Titles Office as Number 7652469 ('the Memorandum') are incorporated in this Mortgage. A reference to 'this Mortgage' in the cover sheet, this Schedule, the Memorandum or any annexure to this Mortgage is a reference to the Mortgage constituted by the cover sheet, this Schedule, the Memorandum and each of those annexures and the Mortgagor acknowledges that the Mortgagor has received and read a copy of this Mortgage prior to executing it." 89A question remains as to who owns the golf course business, and hence would need to employ Mr Hawkins as the golf course superintendent. It is to be recalled that the Illawarra Golf Club Pty Ltd, which is now in liquidation, was the company which ran the golf course business. It, subject to the terms of the agreement which I have earlier outlined, sold the business to one of the companies in the Links Living Group. 90Nevertheless, it was entitled to continue to conduct the business in accordance with the terms of that agreement. However, the fact is that the business being conducted by that company is now in liquidation. 91The evidence does not reveal by whom the business, if it continues to exist, is being conducted. The evidence does not reveal what the terms of the contract between Mr Hawkins and the owners are. It does not reveal whether that is in writing or oral, nor what the terms of it are. 92I would be prepared to infer that the terms of a contract for the retainer of Mr Hawkins as the superintendent of the golf course, may extend to supervising the conduct of the golf played on the course, supervising the care and maintenance of the course, overseeing and supervising the business operation such as the employment, or retainer, of a golf professional, and the provision of services to members of the public who wish to play golf. Beyond that, in the absence of any information, I would not be prepared to infer that there are any additional duties carried out by the golf course superintendent. 93There is no suggestion in the evidence, nor would I be prepared to infer in the absence of any such evidence, that the superintendent is entitled to reside on the property, nor that the golf course superintendent is anything other than an employee of either the Illawarra Golf Club Pty Limited, or else, of the owners. 94Whether or not the owners entered into any loans with respect to the property, and whether or not the owners, represented by Mr Hawkins, attempted to obtain the development consent for the property, and perhaps thereby revealed the financial position of the golf course operations, do not seem to me to relate to, or tell upon, in any way, the fact of the relationship between the owners and Mr Hawkins as the golf course superintendent, nor any of the terms of his retainer as such. 95Nor, so far as I can tell, is Mr Hawkins' financial position some years ago and at least prior to 2009, so far as his assets and liabilities are concerned, or his then income and expenditure are concerned, of any relevance whatsoever to his allegedly current entitlement to remain in occupation of the property. 96The issue as to whether the Receivers were properly appointed will be determined by the terms of the mortgage and the events surrounding that appointment which have occurred. The second issue is what is the right or entitlement of Mr Hawkins to possession. This depends upon an analysis of the contract or agreement under which he is employed or retained as the golf course superintendent, his functions and authority, and whether, as a matter of law, those functions and authorities are overridden by the claim by the NAB through its Receivers to possession. 97Mr Hawkins did not identify any confidential information in any specific way. He adverted in general terms to confidential information of this kind: (a)the property ownership, (b)the mortgage of the property, (c)the proposed sale of the property to the Links Living Group and the financial arrangements associated with that sale, (d)the proposed redevelopment of the property by the Links Living Group, (e)the rezoning of the property and associated steps of obtaining development consent, including an appeal to the Land and Environment Court and an application under Part 3A of the Environmental Planning and Assessment Act for development approval. As well Mr Hawkins points to the interim funding arrangements made by Links Living Group and its bank, the National Australia Bank. 98As to these matters, to the extent that it is relevant, the mortgage of the property and the terms of that mortgage are not confidential information in the hands of Mr Hawkins. The mortgage is registered on the title. The terms of it are contained in a Memorandum of Mortgage lodged with the Land Titles Office. Each of these documents is publicly searchable and available. In a similar capacity, are details as to the property ownership. 99Any question dealing with the proposed redevelopment of the property, including obtaining development consent, have no relationship to any of the issues in the current proceedings. 100Finally, the proposed sale of the property to Links Living Group and all financial arrangements associated with that sale at some time prior to 2009, are not relevant to any of the present issues. 101To the extent that Minter Ellison have details of the interim funding arrangements made by the Links Living Group and its bank, the NAB, they have obtained those from the NAB, not from Mr Hawkins. The information is not confidential to Mr Hawkins. If it is confidential to anybody, it is confidential to the Links Living Group and the NAB, neither of whom suggest that it should prevent Minter Ellison acting in the matter. 102In addition, in his second affidavit, Mr Hawkins suggests that in October 2005, he provided further financial material to the NAB, copies of which were also provided to Minter Ellison. Although I am not satisfied that it has been proved that copies of that material were provided to Minter Ellison, even if they were, then having regard to the fact that the principal addressee of that information was the NAB, and there is no restriction on the NAB providing it to its chosen solicitors, then there is no reason to regard Minter Ellison's possession of that financial information, assuming it to be presently relevant, as being any reason to preclude from continuing to act for the NAB. 103Accordingly, on the issue of confidential information, I am not satisfied that it has been proved that Minter Ellison are in possession of any confidential information of a kind which would lead to the Court making an order sought by Mr Hawkins and granting the relief sought by him.

Administration of justice 104Finally, Mr Hawkins relies upon the fact that Minter Ellison is acting as being contrary to the interests of the proper administration of justice. 105Whilst it is clear that the authorities do provide that there are circumstances in which solicitors will be restrained from continuing to act where their acting would be an offence to the administration of justice; I am unable to see, on the basis of any of the material here, how that can be said in the present circumstances.

Summary 106In summary, I am of the following view: (1)Mr Hawkins is not now, nor was he formerly, a client of Minter Ellison; (2)insofar as Minter Ellison received any information dealing with and surrounding the application for approval of development on the Illawarra Golf Course site, none of that information is presently relevant to the issues joined between the parties; (3)there is no reason demonstrated to restrain Minter Ellison from continuing to act for the NAB. 107Accordingly, the notice of motion brought by Mr Hawkins will be dismissed.

Orders 108I make the following orders: (1)Notice of Motion filed 15 August 2012 dismissed. (2)Applicant, Mr Hawkins, to pay respondent, Mr Campbell and Mr Strawbridge's costs of and incidental to the motion; (3)Stand proceedings over for directions to 9.30am on 19 October 2012.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2012

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