Solicitors:
G F Cohen, Mylora Law (Applicant)
Leonardus Smits Lawyer (Respondent)
File Number(s): 2017/ 279755
[2]
Judgment (EX TEMORE)
Before the Court are competing motions filed on 29 September 2016 in which in substance each of Mr Dean, the sole director of the defendant B.A.D. Nominees (NSW) Pty Limited (BAD) on the one hand, and BAD's purported attorney under power, Mr Mahommed on the other, claims orders which would entitle him and his solicitor to act, and prevent the other and his solicitor from acting, on behalf of BAD in these proceedings. Mr Dean's solicitor is Mr Geoffrey Cohen and Mr Mahommed's solicitor is Mr Leo Smits.
It is necessary to provide a simplified and incomplete description of the complex commercial and litigious background to the substantive litigation. Originally, a company called Redhill owned land at Beechworth in Victoria and Griffith in New South Wales, which it was developing for the purpose of creating residential allotments. For that purpose, it borrowed money from Suncorp Metway Limited (Suncorp) on the security of a mortgage over the Beechworth land. Redhill defaulted, and Suncorp realised the value of the security, not by sale but by assigning the debt and the supporting security to the plaintiff, Beechworth Land Estates Pty Limited (BLE), under an assignment deed between Suncorp and BLE dated 8 November 2012. In order to fund that transaction, BLE borrowed funds from BAD, and BAD's advances to BLE were secured by charges over the assets and undertaking of BLE pursuant to a deed of loan and general security agreement dated 1 February 2013.
On 10 October 2013, BLE entered into a general security deed with Vangory Holdings, granting to Vangory Holdings a fixed charge over all of the present and after-acquired property of BLE that was not a security interest under the (CTH) Personal Property Securities Act 2009 (the PPSA), as well as security over all personal property encompassed by the PPSA. This general security deed was registered on the Personal Property Securities Register (the PPSR) on 13 May 2013, and secured BLE's obligations to Vangory Holdings under a loan agreement dated 10 October 2013. Its effect was to grant to Vangory Holdings a charge over the debt owed by Redhill to BLE that had been assigned by Suncorp to BLE, as well as a charge over BLE's interests as mortgagee in the Beechworth land. But for present purposes, what is most relevant is that it gave rise to a priority contest with BAD.
On 8 July 2014, BAD purported to assign its securities to Batbel Pty Limited. On 14 July 2014, Vangory Holdings appointed Mr Cussen and Mr Senatore as administrators of BLE pursuant to (CTH) Corporations Act 2001 s 436C. Disputes as to the validity of those appointments ensued. Subsequently, Messrs Cussen and Senatore were also appointed agents of BLE as mortgagee in possession of 28 lots of the Beechworth land and also, by order of the Court made on 18 December 2014, as court appointed receivers of the 28 lots of the Beechworth land.
In separate and protracted proceedings, Robb J determined that the administrators were validly appointed: In the matters of Beechworth Land Estates Pty Limited and Griffiths Estates Pty Limited (Administrators appointed) (No2) [2015] NSWSC 336. Orders have also been made in those separate proceedings, pursuant to Corporations Act s 447A, modifying the operation of Pt 5.3A of the Corporations Act so that the convening period for the adjourned second meeting of BLE's creditors is extended, most recently until 28 February 2018. The effect of that course has been to provide the administrators with time to realise the company's assets, without the complication and cost of the competing enforcement claims by creditors claiming security over the same collateral.
BAD lodged a proof of debt with the administrators of BLE for an amount of $807,903 said to be owing under the 1 February 2013 deed of loan. The proof stated that BAD held security in respect of that debt, described as a general security agreement, also of 1 February 2013. A search of the PPSR discloses that BAD's security interest in respect of the Beechworth property is first ranking.
On 20 January 2015, BAD purported to terminate the assignment of its security to Batbel. On 30 December 2015, Vangory Holdings served on BAD a creditors statutory demand for $62,000, claiming to be a creditor by assignment from Batbel.
By 19 April 2016, Mr Dean was deeply frustrated at the lack of progress in realising his security, and was facing the prospect of winding up proceedings against his company for non-compliance with the creditor's statutory demand. On that day he wrote to Mr Cussen, complaining of nearly two years of delay in resolving BAD's security position. It was in that context that on 9 May 2016, BAD, by its sole director and shareholder Mr Dean, executed a suite of documents, including a client services agreement with Mr Mahommed's company Bestcorp Financial Services (Bestcorp) and with Mr Smits, an irrevocable authorisation and direction, a power of attorney, an undertaking of limited recourse, a number of deeds, notices of assignment and demands to Vangory Holdings, a resolution under Corporations Act s 248B, an ASIC Form 504, notices of appointment of Messrs Mahommed and Smits as controllers of BAD and notices of possession under s 78 of the (Vic) Transfer of Land Act 1958 to BLE and to Vangory Holdings. Though some of those documents bear the date 5 May 2016 and/or are said to be effective from that day, the only evidence is that all were executed together on 9 May 2016.
By the client services agreement, Bestcorp and Mr Smits agreed to provide the services of Mr Mahommed and Mr Smits in connection with the exercise of all services, functions and powers under and all matters referred to in the power of attorney, and ancillary and incidental services. Under the client services agreement, the consultants are entitled to remuneration for their services. The power of attorney was executed on behalf of BAD by Mr Dean and bears the date 29 May 2016. It is expressed to be a joint and several appointment of Mr Mahommed and Mr Smits and to operate on and from 5 May 2016 for three years up to and including 5 May 2019. It is expressed in Part 2 to be irrevocable for that three year period, and was registered on 20 September 2017.
The irrevocable authority and direction is addressed to Messrs Smits and Mahommed and to Bestcorp, and includes the following:
In consideration of your undertaking to execute forthwith the agreed forms of power of attorney and consultancy agreement at the request of Mr Brian Dean, as sole director of BAD Nominees Pty Limited...on 8 May 2016, time being of the strictest essence, BAD hereby:
(1) Authorises and directs irrevocably you and/or the administrators of Griffiths Estates...and BLE...to pay 25 per cent of all moneys, damages, interests and costs due, owing or payable to BAD in respect of any Griffiths loss referred to in current legal proceeding as directed in writing by you and for your absolute benefit and the balance of 75 per cent thereof shall be paid to BAD.
...
(3) Without your input and assistance BAD would be unable to marshal or engage the requisite expertise and resources to deal with the enforcement of its alleged loan securities and associated rights or to make or resist any legal challenges against or from the administrator of or any liquidators or receivers or trustees if appointed to BLE, GEP and associated wrong doers, and that BAD carries the risk of payment of all related legal costs, for which BAD undertakes that you will be fully indemnified by BAD.
(4) Acknowledge that you will be at substantial risk for non-payment for provision of your services in the event that you are unsuccessful in recovering moneys for BAD from the administrators.
...
By the undertaking of limited recourse, Mr Smits and Mr Mahommed undertook that under no circumstances would they seek any personal recourse against Mr Dean or his residential property. The deeds, notices of assignment and demands to Vangory Holdings reflected an arrangement procured by Mr Mahommed to obtain and assign to BAD debts owed by Vangory Holdings which would offset the debts claimed by Vangory Holdings in its creditors statutory demand and thus provide, presumably, a defence to Vangory Holdings's claim.
On 9 May 2016, following execution of the suite of documentation, Mr Smits sent a letter to BLE's administrators, notifying them that as from 5 May 2016, he and Mr Mahommed were appointed as duly authorised representatives of BAD under the BLE loan security agreement of 1 February 2013, and attaching a copy of the power of attorney. Following negotiations with the administrators, on 30 May 2016 Mr Smits and Mr Mahommed proposed heads of agreement between BAD and the administrators of BLE. However, on 31 May 2016, Mr Dean's solicitor Mr Cohen sent to Mr Smits and Mr Mahommed a letter enclosing a document entitled "Revocation of the Power of Attorney" by which "Brian Arthur Dean", described therein as the principal, purported to revoke the power of attorney of 9 May 2016. The covering letter asserted:
Our client holds himself not to be bound by the terms of any of the said documents due to the manner by which he was induced by each of you to execute the documents. Any authority that you may believe was granted to each of you by our client is hereby refuted. You do not have authority of any kind to act on behalf of our client as agent or otherwise.
As will become apparent, not all of the complaints implicit in those assertions were ultimately pressed at the hearing.
On or about 9 June 2016, Mr Cohen, claiming to act on behalf of BAD and Mr Dean, wrote to BLE's administrators' solicitor, disputing the authority claimed by Mr Smits and Mr Mahommed. On 10 August 2016, BAD entered into a deed with Maitland Finance and Acquisition Pty Limited (Maitland), pursuant to which BAD as assignor agreed to assign to Maitland as assignee, the debt in the amount of $807,903 owing by BLE to BAD under the 1 February 2013 deed of loan.
By letter dated 13 June 2017 to Mr Orlizki, solicitor, BLE's administrators conveyed an offer to BAD and Maitland to make an in specie distribution to BAD by transferring title to certain of the remaining Beechworth lots, namely lots 16, 17, 18, 30, 47, 48, 49, 73 and 74, of which it was mortgagee in possession. A copy of that letter was also sent to Mr Dean, Mr Cohen, Mr Smits and Mr Mahommed.
On 14 June 2017, Mr Smits sent a letter to BLE's administrators purporting to accept on behalf of BAD the offer of 13 June. Later on the same day, Mr Cussen, one of the administrators, received an email from Mr Orlizki asserting that neither Mr Smits nor Mr Mahommed had any authority to act for Maitland and that, as he understood the position, neither Mr Smits nor Mr Mahommed had any authority to act for BAD. On 19 June 2017, Mr Cohen sent a letter to the administrators, reiterating Mr Dean's position that neither Mr Smits nor Mr Mahommed had any authority to act for BAD or Mr Dean.
On or about 26 July 2017, Mr Cohen, purportedly on behalf of BAD, sent a letter to the solicitor for the administrators, offering to accept the transfer of nine lots by BLE to BAD or its nominee in reduction of BAD's claim against BLE to the extent of $1 million. On 2 August 2017, Mr Mattiussi, on instructions from the administrators, sent an email to Mr Cohen accepting BAD's offer, subject to and on the condition that the administrators and the company obtain appropriate relief from the Court that determines the validity of Mr Smits' letter of 14 June 2017, that the offer was validly made on behalf of BAD, and that BLE's administrators and the company are otherwise able to sell or transfer the lots without breaking any legal obligation and give title to such lots as the offer contemplates.
Accordingly, on 14 September 2017 BLE's administrators filed an originating process in these proceedings, seeking the following declaratory relief:
2. A declaration that the plaintiff and the defendant have entered into a contract on the terms of the communications dated 26 July 2017 and 2 August 2017...
3. A declaration that the plaintiff is authorised to sell the properties identified in schedule A hereto to the defendant.
Schedule A identified lots 16, 17, 18, 30, 47, 48, 49, 73 and 74.
On 14 September 2017, Mr Mahommed, in purported exercise of the power of attorney, retained Mr Smits as a solicitor to act for BAD in the proceedings. On 15 September 2017, Mr Cohen of Mylora Law, on the instructions of Mr Dean, filed a notice of appearance in the proceedings on behalf of BAD. On 20 September 2017, Mr Smits filed a notice of appearance on behalf of BAD on the instructions of Mr Mahommed.
When the matter came before the Court for the first time on 25 September 2017, the Court noted that there was a dispute as to the authority of Mr Cohen on the one hand and Mr Smits on the other to act for the defendant, each of them having filed a notice of appearance, and made directions that any person who challenged the retainer of either file and serve an interlocutory process and evidence in support thereof. It was pursuant to that direction that the interlocutory processes presently before the Court for hearing were filed.
Meanwhile, however, a consensual position was reached in respect of the substantive proceedings, and on 23 October 2017, Gleeson JA made the following orders, declarations and notations by consent, including an order joining Mr Dean, Mr Smits and Mr Mahommed as parties to the proceedings:
1. The Court, pursuant to r 2.13 of the Supreme Court (Corporations) Rules, orders that Brian Dean, Leonardus Smits and Peter Shah Mahommed be joined as parties to these proceedings.
2. The Court makes declarations in terms of paragraphs 2 and 3 of the originating process filed on 14 September 2017.
3. The Court notes that Mr Mahommed and Mr Smits without prejudice to their contentions, and otherwise without admissions on the part of those parties, ratify and adopt the contract referred to in paragraph 2 of the originating process.
4. The Court reserves the parties' costs incurred up to and including 23 October 2017.
5. The Court notes the further agreement recorded in paragraphs 1 and 5 of Annexure A hereto and makes orders in terms of paragraphs 2-4 thereto, namely:
Without prejudice and without admissions, Messrs Mahommed, Smits and Dean agree as follows:
1. As to the subject lots upon registration of the transfers of title to the defendant:
(a) as to Lots 48 and 49, the defendant shall hold title to these lots upon condition it shall not alienate, encumber or otherwise deal with those lots pending final determination of the interlocutory applications filed on 29 September 2017;
(b) as to the remainder of the lots (other than Lots 48 and 49), the defendant shall be at liberty to deal with them as it sees fit;
(c) Mr Dean and Mr Cohen may execute any transfers from the plaintiff.
2. Mr Mahommed shall serve any further affidavits in support of his interlocutory application by 21 November 2017.
3. Mr Dean shall serve any further affidavits in support of his interlocutory application and in reply to Mr Mahommed's affidavits by 21 December 2017.
4. Liberty to apply to Justice Black for allocation of a hearing date for the interlocutory applications in the new Law Term.
5. Note the agreement of the plaintiff, Mr Mahommed, Mr Dean and Mr Smits to execute all necessary documents and to do all things necessary to give full force and effect to terms of settlement and the agreement noted herein.
Although those orders essentially dispose of the issues in the substantive proceedings, there is an ongoing issue as to the efficacy of the power of attorney, and it is conceivable that further issues may arise, even in the present proceedings, if there are any questions of enforcement or further applications.
On the present application, the issues for determination may be stated as follows: first, was the power of attorney revocable; secondly, if so, was it in fact revoked; thirdly, if not, has Mr Smits' retainer nonetheless been terminated in accordance with its terms; and, fourthly, if not, what should be done about the fact there are dual appearances on the record for the defendant in these proceedings.
The first issue then, and probably the most important issue in the proceedings is whether the power of attorney was revokable. At common law for a power of attorney to be irrevocable it must be given for valuable consideration and be coupled with an interest that is protected or advanced by the power: Quest Rose Hill Pty Limited v White [2010] NSWSC 939 at [81], per Ward J as her Honour then was. However, the (NSW) Powers of Attorney Act 2003 provides, by s 15, that an instrument that creates a power of attorney creates an irrevocable power of attorney for the purposes of the Act if (a) the instrument is expressed to be irrevocable and (b) the instrument is given for valuable consideration or is expressed to be given for valuable consideration.
Section 16 provides as follows:
16 Effect of irrevocable powers of attorney
(1) The power conferred by an irrevocable power of attorney is not revoked or otherwise terminated by, and remains effective despite, the occurrence of any of the following:
(a) anything done by the principal without the concurrence of the attorney,
(b) the bankruptcy of the principal,
(c) the mental incapacity of the principal,
(d) the principal becoming a mentally incapacitated person,
(d1) the principal becoming a person who is a managed missing person within the meaning of the NSW Trustee and Guardian Act 2009,
(e) the death of the principal,
(f) if the principal is a corporation, the dissolution of the corporation.
(2) Subsection (1) has effect except to the extent that the instrument creating the irrevocable power of attorney provides otherwise.
Relevantly, that section states the consequences of a power of attorney being irrevocable for the purposes of the Act. Section 7 of the Act provides that the Act does not affect the operation of any principle or rule of the common law or equity in relation to powers of the attorney, "except to the extent this Act provides otherwise whether expressly or by necessary intention".
In my view, it is a necessary intention of s 15, in stating the conditions of irrevocability for the purposes of the Act, that it replaces the common law requirements. The relevant requirements are those stated in s 15, namely that (a) the instrument is expressed to be irrevocable and (b) the instrument is given for valuable consideration or is expressed to be given for valuable consideration. If those conditions are satisfied, then s 16 applies.
In this case, the power of attorney is expressed to be irrevocable for a period of three years, and the first requirement is therefore satisfied. It is not expressed to be given for valuable consideration, but if in fact it was given for valuable consideration that will suffice, though it is not stated on the face of the document.
I have referred to the context in which the power of attorney was given, and the terms of the client services agreement and the irrevocable authority and direction which accompanied it. Relevantly, BAD was endeavouring to realise its security interests, and it was frustrated by the impediments that were associated with the administration of BLE and the surrounding litigation. It retained Mr Mahommed and Mr Smits to assist it to realise its security interest, in return for their remuneration under the client services agreement and a right to 25 per cent of any recoveries, pursuant to the irrevocable authority and direction. In order to facilitate their performing their functions under the client services agreement and the power of attorney, and earning their fee, it gave them all necessary power and authority to act on behalf of and represent BAD in respect of those matters. Not unlike litigation funders, Messrs Mahommed and Smits stipulated that their services were conditional not only on the right to the 25 per cent of recoveries, but also on them having full power and authority to conduct the matters in question. The power of attorney was an element of giving them that full power and authority and, thus formed part of the consideration for their services under the client services agreement.
It was submitted for Mr Dean that the client services agreement and the irrevocable authority and direction, being dated 5 May 2016, predated the power of attorney dated 9 May 2016, and were therefore past consideration and thus no consideration for the power of attorney. However, as I have observed, the only evidence is that all the documents were executed contemporaneously on 9 May 2016, and the proper inference is that they all formed part of a single arrangement and each was consideration for the other.
It was also submitted for Mr Dean that the power of attorney was not coupled with a grant because it was not expressed so as to secure or advance any right or interest of the donees, but only to advance the rights of the donor. That submission overlooks that the donees had an interest in BAD's success through the 25 per cent of recoveries that had been assigned to them. But, in any event, there is no requirement under s 15 of the Act, as distinct from the common law requirements, that to be irrevocable a grant of a power of attorney need be coupled with a grant of an interest.
Accordingly, the power of attorney is expressed to be irrevocable and it was given for valuable consideration. It follows that it is irrevocable pursuant to s 15, and consequently by s 16(1)(a) it is not revoked or otherwise terminated by and remains effective despite the occurrence of, anything done by the principal without the concurrence of the attorney.
Turning to the second question - whether the power of attorney was, in fact, revoked - it suffices to say that that question does not arise, as it would only be relevant if the Power of Attorney were revocable. However, I will simply and shortly observe that I would have accepted that if the power of attorney were revocable, then the notice of 31 May 2016 would, despite its nomination of Mr Dean and not BAD as the principal, have been effective to revoke it. Given the context in which it was given, its reference to the power of attorney of 9 May and the covering letter, no recipient could have been under any misapprehension but that its intention was to revoke the subject power of attorney.
I turn then to the third question, which is whether Mr Smits' retainer has nonetheless been terminated in accordance with its terms. For Mr Dean, it was submitted that even if the power of attorney had not been revoked, nonetheless Mr Dean as sole director retained power to retain solicitors on behalf of BAD and to terminate the retainer of solicitors appointed by the attorneys.
Reference was made to Mr Smits' retainer agreement which, in cl.12, contained express provisions in connection with termination including:
We will not continue to do the work if:
12.8 you engage another law practice to advise you or otherwise change representation without our informed consent.
…….
12.10 you indicate to us that we have lost your confidence;
….
You may also terminate this retainer agreement at any time either with or without cause by writing to us.
Well prior to the creation of the power of attorney and even further prior to the retainer of Mr Smits through Mr Mahommed, BAD had retained Mr Cohen on 4 December 2015 in terms which arguably extend to the present proceedings - although those proceedings were not yet on foot, and generally speaking a separate or further retainer is required to act in litigation. In any event, for Mr Dean it was submitted that at the very latest his interlocutory process of 29 September 2017 must have conveyed to Mr Smits the relevant loss of confidence and written notice of termination.
I accept that, generally speaking, the appointment of an attorney under power, as with any other agent, does not preclude the principal from performing acts as a principal of his or her own motion which could equally be performed by the attorney. Mr Cashion of Senior Counsel referred to Re Craven's Estate; Lloyds Bank Limited v Cockburn [1937] Ch 423; (1937) 3 All ER 33, in which Farwell J said (at [39]):
In my judgment the mere giving of a Power of Attorney by the donor to the donee is not in itself sufficient parting with dominion to satisfy the condition. The position of the donee of the power is merely to act as agent for the principal and there is nothing to prevent the principal dealing with the property notwithstanding the Power of Attorney.
The question has often arisen in the case of the appointment of "sole" or "exclusive" agents. In many cases, it has been held that the express appointment of a sole agent does not preclude the principal from selling the property herself or himself, and although the appointment of an "exclusive" agent may often do so, it is always a matter of construction, as McCardie J said in Bentall, Horsley and Baldry v Vicary [1931] 1 KB 253. In that case, the contract contained no express prohibition against a sale by the defendant himself, and the implication of such a prohibition was not necessary to give business efficacy to the transaction. However, as his Honour said (at [258]):
In such contracts as the present it is always important to observe the exact words used. I have made the last observation in view of the decisions which were cited by counsel....
Similarly, in Murphy, Buckley and Keogh Limited v Pye (Ireland) Limited [1971] IR 57, Henchy J held that the contract made by the parties did not contain any express term forbidding the defendants to negotiate a sale during the continuance of the plaintiff's agency, and that there were no grounds for implying a term to that effect. On the other hand, in WT Lamb and Sons v Goring Brick Company Limited [1932] 1 KB 710, the appointment of sole agents for the distribution of the defendant's product was held to mean that the agents were to have the sole right of selling in their capacity as agents without any reservation in favour of the defendants themselves.
It is also relevant in this context to bear in mind the well-established principle, in Mackay v Dick [1881] 6 App Cas 251, that as a general rule where in a written contract it appears that both parties have agreed that something shall be done which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, even though there may be no express words to that effect. It is also relevant to bear in mind the general principle that a grantor is not entitled to derogate from the grant in a way, and a contract will not be interpreted in a way that facilitates the derogation by a grantor from the grant.
The contractual context to which I have already referred makes clear that the purpose of the grant was to give Messrs Mahommed and Smits full power and authority to deal with the subject matter, so that they could earn their fee and thereby earn three times that for their principal. It is not necessary to define the extent of any residual authority that Mr Dean might have had as sole director. Quite conceivably, if the attorneys did not act and appoint solicitors it might well have been open to him to do so. But what, in my view, on a proper construction of the power of attorney and surrounding documentation, he plainly cannot do, is effectively in derogation of the grant - and in order to frustrate the very purpose of the contractual arrangements and the power of attorney - interfere with their exercise of their authority, including their appointment of a solicitor to act on behalf of BAD in proceedings which concern the subject matter referred to in the power of attorney.
As to Mr Smits' retainer, while he was retained ultimately to act on behalf of BAD, it was a retainer entered into by BAD's attorney. There is nothing to suggest that as solicitor he does not retain the confidence of Mr Mahommed, the attorney who appointed him to act on behalf of BAD. The loss of confidence of the principal or purported termination by the principal is not operative or effective. Accordingly, in my view Mr Smits' retainer has not been terminated, and Mr Dean would not be entitled on behalf of BAD to cause it to be terminated.
That leaves the remaining question, as what should be done about the dual appearances in the proceedings. Although there is no reason why a client cannot retain multiple solicitors to act on his or her behalf in relation to the one matter, it is only in exceptional circumstances that the court would allow two or more solicitors to be on the record as acting for one party in proceedings before it: Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356 at [3] - [11].
Invoking the judgment of the court in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, Mr Cashion submitted that 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, and that unless there was some very good or exceptional reason to the contrary, the court should permit a litigant, here BAD, to be represented in proceedings by the solicitor of its choice, rather than effectively being forced into a situation where it is being represented by someone it does not want to act for it. In an ordinary case there is great force in those submissions. However, this is not an ordinary case. It is not unlike cases in which, for example, mortgagees acting pursuant to a power of attorney contained in the mortgage might purport to act on behalf of the mortgagor who would prefer them to take no action at all. Here there has been a contractual assignment of the right to conduct, on behalf of BAD, proceedings of the class of the instant proceedings.
The reasons I have given in connection with rejecting the proposition that it was open to Mr Dean on behalf of BAD to terminate Mr Smits' retainer or to instruct other solicitors to act, produce the conclusion here that it would amount to impeding performance of the contract, derogating from the grant and denying to the other contracting parties - namely Mr Smits and Mr Mahommed - the intended benefit of the contract, for BAD to be permitted to engage another solicitor to act for it in the substantive proceedings.
[3]
Conclusion
For those reasons the Court:
1. Declares that upon its true construction and in the events which have happened the power of attorney dated 9 May 2016 Registered Book 4732 No 617 from BAD Nominees Pty Ltd to Mr Mahommed and Mr Smits is irrevocable within the meaning of the Power of Attorneys Act until 6 May 2019.
2. Declares that pursuant to the said power of attorney Mr Mahommed was authorised to retain and did retain Mr Smits to act as solicitor for the defendant, BAD Nominees Pty Ltd, in these proceedings on and from 14 September 2017.
3. Orders that the Notice of Appearance purportedly filed on behalf of the defendant by Geoffrey Cohen, solicitor of Mylora Law, on 15 September 2017 be struck out and that until 5 May 2019 and so long as Mr Smits or any other lawyer retained by Mr Mahommed and/or Mr Smits pursuant to the said power of attorney continues to act for the defendant in these proceedings:
1. Geoffrey Cohen be restrained from purporting to act for the defendant in these proceedings; and
2. Brian Dean be restrained from retaining or purporting to retain any other lawyer to act for the defendant in these proceedings.
1. Orders that the interlocutory process filed by Mr Cohen on behalf of Mr Dean on 29 September 2017 be dismissed.
2. Orders that Mr Dean pay the costs of Mr Mahommed and Mr Smits of both of the interlocutory processes.
[4]
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Decision last updated: 29 October 2018