LCM Litigation Fund Pty Ltd v Coope

Court of Appeal (NSW)|2017-03-21|Before: Macfarlan JA, Simpson JA, Robb J

Background facts

The relevant facts were not in issue. As its name suggests, LCM conducts a business of lending funds for litigation. The respondent was involved in LCM from its inception in 1997. On 12 February 2014 he entered into a contract of employment with LCM in which he was engaged as one of two joint managing directors. The employment contract was for a five year term, with a commencement date of 1 December 2013. The other managing director was Mr Patrick Moloney. There is evidence from which it may be inferred that Mr Moloney held legal qualifications. The respondent used an email account, the address of which included "…@lcmlitigation…" (the "LCM email address"). The primary judge inferred that the LCM email address was intended to be used by the respondent for LCM's business.
Also in existence was a subsidiary of LCM, called Small Claims Funding Pty Ltd ("SCF"), which was the trustee of an entity called the "Small Claims Fund". All units in SCF were held by companies associated with either the respondent or Mr Moloney. The purpose of the creation of SCF was to provide litigation funding for small projects, preferably those in which Mr Moloney could act as solicitor on the record, in order to reduce the amount of funding necessary. It may be assumed that the respondent was a director or at least an officer of SCF. The respondent had a second email account, the address of which included "…@smallclaimsfund…" (the "SCF email address"). Although he did not expressly say so, it is clear that the primary judge proceeded on the basis that the SCF email address was intended to be used by the respondent for SCF's business.

LCM's case on contempt was that Mr Farnsworth and Mr Duncan were clients of LCM with whom the respondent had had direct dealings within two years prior to the date of termination of his employment (that is, at any time between 1 April 2013 and 31 March 2015), that the content of each email constituted soliciting, canvassing or approaching those clients (or an attempt to do so) within the relevant period, and, accordingly, was in breach of the undertaking in par 9. The allegation of breach of par 10 was not pursued.
In order to establish contempt by breach of the undertaking as particularised in the Statement of Charge in relation to Mr Farnsworth (or Mr Duncan), it was necessary that LCM prove beyond reasonable doubt: 1. that Mr Farnsworth (or Mr Duncan) was a client of LCM; 2. that, within the two year period prior to the termination of his employment, the respondent had had "direct dealings" with Mr Farnsworth (or Mr Duncan); and 3. that either or both of the emails of 3 August and 8 September constituted soliciting, canvassing or approaching Mr Farnsworth (or Mr Duncan), or attempting to do so.
It was not in dispute that, at least from 29 May 2014 when he entered into the litigation funding agreement, Mr Farnsworth was a client of LCM and was therefore a client of LCM at the time the emails were sent. That Mr Duncan was a client of LCM was in dispute (and ultimately was resolved against LCM).
Before the primary judge, LCM contended (i) that, in construing the undertaking, the word "client" should not be given its ordinary meaning, but should be given its extended meaning drawn from the definition in the employment contract; (ii) in relation to Mr Farnsworth, that the receipt by the respondent of the funding application was of itself sufficient to constitute a "direct dealing" with Mr Farnsworth; (iii) that the respondent's execution, on behalf of LCM, of the funding agreement was, similarly, sufficient of itself to constitute a "direct dealing" with Mr Farnsworth; and (iv) that each of the emails constituted soliciting, canvassing or approaching Mr Farnsworth.
On behalf of the respondent, a number of issues for determination were identified, not all of which need to be noticed on this appeal. The respondent's contentions that continue to be relevant were: 1. that since the undertaking was given in favour of LCM, its applicability (and enforceability) was limited to LCM and did not extend to any subsidiary (such as SCF) or related entity, and it was necessary that any "client" with whom the respondent was said to have had direct dealings be a client of LCM, and not of any subsidiary or related entity; 2. that the word "client" should be given its ordinary meaning, and not the extended meaning assigned to it in the employment contract; 3. that the undertaking applied only to clients in the capacity in which they engaged with LCM (so that, for example, a liquidator such as Mr Farnsworth was, for the purposes of the undertaking, only a "client" when acting as liquidator, and not a client if engaged in another, or a personal, capacity); 4. that, before a breach of the undertaking could be established, it was necessary for LCM to show that the soliciting, canvassing, or approaching alleged was in relation to "actual work" that was in existence; 5. that the emails of 3 August 2015 and 8 September 2015 should not be construed as within the terms of the undertaking - that is, that they did not constitute any of the conduct forbidden by the undertaking in par 9; 6. that all dealings he had with Mr Farnsworth were in his capacity as an officer of SCF, not LCM; and 7. that the respondent's direct dealings were with Mr Rosenblatt, not Mr Farnsworth, and were, accordingly, not within the terms of the undertaking.

Legal principles

The primary judge set out the legal principles by which the claim was to be determined in a manner that was and is uncontroversial. It was common ground that it was necessary for LCM to prove the elements of the contempt alleged beyond reasonable doubt. The primary judge made reference to principles concerning contempt by breach of an order of a court, which, with appropriate adaptations, are equally applicable to contempt by breach of undertakings made to a court. With those adaptations, the relevant principles are: 1. the undertakings must have been given to a court; 2. the terms of the undertakings must be clear, unambiguous and capable of compliance; and 3. the alleged contemnor must have breached the terms of the undertaking. See National Australia Bank Ltd v Juric [2001] VSC 375 at [37]-[38]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]-[32] and Wyszenko v Wyszenko [2012] NSWSC 732 at [17]-[18].
The primary judge accepted, again uncontroversially, that undertakings given to a court must be construed "in light of the factual matrix known to the parties, including the nature of the proceedings in which the undertaking was given" (see Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 at [14]-[15]).
A good deal of time was taken up in the proceedings at first instance, and in the primary judgment, by the question of the interpretation to be placed on the word "client" as it appears in the undertaking. The dispute was as to whether "client" as used in the undertaking should be construed as having the extended meaning given to it in the definition clause of the employment contract (as LCM contended) or as having its "ordinary meaning" (as the respondent contended). (To a large extent, the debate centred on the use of an upper case "C" in the word in the definition clause, and a lower case "c" as used in the undertaking. It is not necessary further to explore this controversy. It was resolved in favour of the respondent, with the result that LCM could not prove the allegations so far as they involved Mr Duncan.)
The relevant findings and conclusions of the primary judge were: 1. he accepted that the undertaking in par 9 only applied to clients of LCM; it did not extend to clients of SCF; 2. the word "client" in the undertaking is to be construed as a client in the ordinary sense of the word, and not given the extended meaning in the definition in the employment contract; 3. any dealings of the respondent, to come within the terms of the undertaking, had to be dealings on behalf of LCM; it would be insufficient that the respondent had dealings with Mr Farnsworth in his capacity as an officer of SCF; 4. the respondent's submission that the undertaking was limited to clients in the capacity in which they had become clients of LCM (so that, for example, Mr Farnsworth was a client of LCM only in his capacity as a liquidator and not in his personal capacity), should be rejected; 5. the respondent's submission that it was necessary that LCM show that the soliciting alleged related to actual (as distinct from possible or potential) work should be rejected; 6. Mr Farnsworth was a client of LCM; 7. both emails to Mr Farnsworth and others constituted solicitation; 8. the respondent's act in signing the litigation funding agreement was not a direct dealing with Mr Farnsworth; it was an executive action undertaken on behalf of LCM; and 9. the respondent only dealt with Mr Farnsworth and Mr Rosenblatt in his capacity as director (or officer) of SCF, and not on behalf of LCM.
The primary judge considered that it was not necessary to determine the respondent's contention that, because his communication were with Mr Rosenblatt and not Mr Farnsworth, he was not shown to have had direct dealings with Mr Farnsworth, but that, were it necessary to decide that question, he would have held that direct dealings with a solicitor on behalf of a client amount to direct dealing with that client.
On several occasions during the course of his reasons, the primary judge mentioned that there was no evidence that the respondent had invited, or in any way solicited, the approach from Mr Farnsworth.
He dealt only obliquely with LCM's contention that the mere passive receipt by the respondent of Mr Rosenblatt's email of 20 August 2013 was sufficient to constitute direct dealing with Mr Farnsworth. It may be inferred, however, that he rejected that proposition. That most clearly emerges from [160] of the judgment where he said: "While it is true, as I have noted above, that the original letter written by Mr Rosenblatt, and the accompanying proposal, were addressed expressly to LCM, there is no evidence that [the respondent] personally invited that application to be made to LCM, and the fact that it was sent to his SCF email address justifies the inference that, whatever invitation [the respondent] may have made to Mr Rosenblatt, whether direct or indirect, [the respondent] only invited an application to be directed to SCF. That may be a debatable conclusion, but it cannot be excluded in the context of the obligation on LCM to prove beyond reasonable doubt that [the respondent] had direct dealings in the relevant period with Mr Farnsworth."
The primary judge therefore dismissed the Amended Summons and the Amended Statement of Charge.
Given the manner in which the case had been presented, the dispositive conclusions were: (i) (inferentially) that the receipt by the respondent, on or after 20 August 2013, of Mr Rosenblatt's email, directed to his LCM email address, was insufficient to establish a direct dealing with Mr Farnsworth; and (ii) that the respondent's act in signing, on behalf of LCM, the litigation funding agreement, was insufficient to constitute a direct dealing by the respondent with Mr Farnsworth.

The appeal

Only one ground of appeal was pleaded. It was in the following terms: "1 The learned trial judge erred in failing to find that the respondent had had 'direct dealings' with, or performed work for, Mr Farnsworth within the two years prior to 31 March 2015, when the respondent's employment with [LCM] was terminated, within the meaning of the undertaking the respondent had given to the Supreme Court of New South Wales."
It was made clear that no "direct" challenge was made to the primary judge's factual findings with respect to the respondent's dealings with Mr Farnsworth. Rather, it was said, that challenge was as to the (legal) characterisation of those dealings. This, it was further contended, was a question of law. Reference was made to Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384; [2016] HCA 26 at [27] where the High Court said: "But questions whether a statement has a quality which the law requires and whether, objectively, it could be said to be intended to be contractually binding are questions of law." No argument to the contrary of that proposition above was put on behalf of the respondent.
The ground of appeal as pleaded is unenlightening. No attempt was made to identify any specific error on the part of the primary judge, or any finding or conclusion that was challenged.
It was made clear in written submissions that LCM continued to rely on two acts of the respondent as constituting "direct dealings" with Mr Farnsworth. The first was his receipt (without more) of the funding application made by email on 20 August 2013. The second was his execution, on behalf of LCM, of the funding agreement on 29 May 2014. Failure to find that each of these acts constituted a direct dealing by the respondent with Mr Farnsworth were the only errors asserted in LCM's written submissions.
That the first proposition represented LCM's position was stated explicitly in the written submissions, which contained the following: "3. … (a) the receipt by [the respondent] on 20 August 2013 of a funding application made to LCM by Mr Farnsworth was a direct dealing within the meaning of the undertaking, particularly given that application purported to impose obligations of confidence upon LCM and its officers."
This position was maintained in the written submissions in reply to those of the respondent. In the submissions in reply reference was made to "the usual purpose" of a non-solicitation undertaking (in an employment contract) as protection of the employer against the use by the employee of confidential information obtained in the course of the employment. The submission went on: "3 … [the respondent] was armed with confidential information concerning the claims being considered by Mr Farnsworth, including the solicitors and barrister he had engaged for that purpose. [The respondent] gained 'personal knowledge and influence' from the passive receipt of this information, which he could use to his own advantage (and to LCM's detriment) in seeking to solicit work from Mr Farnsworth after he ceased working for LCM. 4. Secondly, the fact [the respondent] received the email attaching the LCM funding application shows that he was seen by Mr Farnsworth as a representative of LCM. The Undertaking properly prevented [the respondent] from taking advantage of being seen as a representative of LCM after he left its employment." (italics in original, bold in par 3 added)
Neither in the Notice of Appeal, nor in the written submissions, was any challenge made to the finding, at [159], that all of the respondent's dealings with Mr Farnsworth (through Mr Rosenblatt) were made in his capacity as officer of SCF. Nevertheless, a challenge to this finding emerged on the hearing of the appeal and, indeed, became a central focus. Senior counsel who appeared for the respondent protested (justifiably) that he had come to meet the arguments concerning "passive receipt of the funding application" and the "mere signing" of the agreement.
Nor was any ground raised in the Notice of Appeal or the written submissions concerning the primary judge's reliance on the absence of evidence of evidence of any invitation by the respondent to Mr Farnsworth to make the approach to LCM. Yet this too featured prominently in the oral argument.
By Notice of Contention, the respondent sought to uphold the primary judge's conclusions on two additional bases, those being that LCM had failed to establish beyond reasonable doubt that: "1 Mr Farnsworth was a client of [LCM] within the two year period prior to the date of the termination of the Respondent's employment with [LCM], being the period of 31 March 2013 to 31 March 2015, as opposed to being only a client of LCM in his capacity as a liquidator of Moore Australasia Pty Ltd (in Liquidation). 2 Mr Farnsworth was a client of [LCM] with whom the Respondent had direct dealings, or for whom [the respondent] performed work, within the two year period prior to the date of the termination of the Respondent's employment with [LCM], being the period of 31 March 2013 to 31 March 2015."
The second, without elaboration, is somewhat obscure. Senior counsel on the appeal made it clear that the intent of the ground was to contend that any dealings the respondent had were had, not directly with Mr Farnsworth, but with the solicitor acting on Mr Farnsworth's behalf, Mr Rosenblatt - an argument that had been put to and rejected by the primary judge.

(i) Receipt by the respondent of the funding application made to LCM by Mr Farnsworth

As set out above, in written submissions it was clearly asserted that the mere fact of the receipt by the respondent of the funding application made on behalf of Mr Farnsworth to LCM was sufficient to constitute a direct dealing. In oral submissions, senior counsel retreated from, but then reasserted, that proposition. Although at one point in oral argument he accepted that "a one-sided communication" would not be sufficient to establish "direct dealing", he continued to maintain that the respondent's receipt of the email and the application was sufficient. By way of rationale, he related the receipt of the documents to the receipt of confidential information, which would place the recipient (the respondent) in a position of advantage in respect of the client (Mr Farnsworth) relative to the employer (LCM). His final position appeared to be that in the context of the course of the communications between the respondent and Mr Rosenblatt: "… it is the sum of these dealings which LCM contends constituted direct dealings."
No viable argument was advanced to sustain the proposition that the mere passive receipt by the respondent of the application was sufficient to constitute a direct dealing. The last proposition, that "the sum of [the subsequent] dealings" constituted direct dealing contradicts the initial proposition, and, if accepted, would have the effect of retrospectively constituting an unsolicited approach as the "direct dealing" upon which it relied. LCM chose to isolate the receipt by the respondent of the application, to the exclusion of the subsequent communications, as the direct dealing. In my opinion the proposition is self-evidently wrong. A "direct dealing" connotes some interaction, whether in person, by telephone, by written correspondence, or by email communication (or, perhaps, others) between the parties said to have engaged in direct dealing. There is no evidence of such interaction in relation to the initial email; there is no evidence that the respondent replied to that email. It is true that later communications with Mr Rosenblatt could be said to have constituted direct dealings, but that is no answer to the present proposition, which is limited to the receipt, without more, of Mr Rosenblatt's communication. (Those are the communications found by the primary judge to have been made by the respondent in his SCF capacity, as to which only a very belated challenge was made.)
Even accepting (as, for the purposes of this argument, I do) that dealings by the respondent with Mr Rosenblatt were dealings with Mr Farnsworth, the mere fact that Mr Rosenblatt sent an unsolicited application form, and correspondence, to the respondent is not capable of constituting a direct dealing.

(ii) Execution of the funding agreement

LCM's position on this aspect of the appeal was put in written submissions as follows (I paraphrase):

the execution of the agreement was the act by which LCM entered into the agreement with Mr Farnsworth;
the respondent's signature on the agreement was, in accordance with relevant provisions of the Corporations Act 2001 (Cth), a representation that the document had been validly executed by LCM; and
equally, the respondent's signature was a representation of his authority to execute the document.

Each of these may be accepted. None individually is, nor are all taken together, capable of establishing that the execution of the document by the respondent was a direct dealing with Mr Farnsworth. As stated above, for conduct to constitute a direct dealing it must incorporate some element of interaction or connection between those said to have so engaged. Mere placement of a signature on a document that records a concluded agreement goes no way to establishing the necessary interaction, at least where there is no evidence that the executed document, or a copy of it, was conveyed to the other party.
A further submission made by LCM (made for the first time in its written submissions in reply) was that the respondent "performed work for" Mr Farnsworth in the relevant period, contrary to the undertakings, because he evaluated Mr Farnsworth's request for funding and communicated with Mr Moloney about it. This submission should be rejected because this conduct did not constitute work done for Mr Farnsworth, rather it was work done on behalf of and in the interests of the proposed lender to determine whether it wished to lend to Mr Farnsworth. In any event, the funding application was addressed to the respondent at SCF, with the result that if, contrary to my view, the respondent performed any work for Mr Farnsworth in evaluating the application, he did so on behalf of SCF rather than LCM.

(iii) Factual challenges

I turn now to the final two challenges, unheralded in either the Notice of Appeal or the written submissions. On one view, given the circumstances in which these matters were raised, to entertain them could potentially work unfairness to the respondent. However, as I have come to the firm view that each is without foundation, no injustice will be occasioned by addressing them, although I propose to do so briefly.
The first new issue was a challenge to the finding of the primary judge that all the respondent's dealings with Mr Rosenblatt were in his SCF capacity.
In support of this argument, the appellant drew the Court's attention to the pro forma funding application completed by Mr Rosenblatt, referred to above, which bore the LCM logo and name. Additionally, the appellant highlighted that the correspondence from Mr Rosenblatt accompanying the application was addressed to "LCM Litigation Fund", despite it being noted on the face of that correspondence that it was to be sent via email to the respondent's SCF address.
The application and correspondence, however, took place within a chain of email correspondence. The email trail, traced exhaustively in the evidence, establishes the correctness of the primary judge's conclusion - that the appellant did not prove beyond a reasonable doubt that Mr Coope was engaging with Mr Rosenblatt in his LCM capacity - notwithstanding the pro forma application.
For example, on 26 September 2013 Mr Rosenblatt emailed the respondent, again at his SCF address. The email was brief and to the point, and asked the respondent: "Can you please advise if SCF is interested in funding."
On 9 October 2013 the respondent, using his SCF account, emailed Mr Rosenblatt, saying: "Marty - I think that at least 1 page of the counsel's advice is missing - would you please resend the document - thanks" This was clearly a response to the letter attached to the email of 20 August, which stated that a preliminary advice was included in the material provided.
Twelve minutes later on the same day, and on the same account, the respondent again emailed Mr Rosenblatt, saying: "Marty - do you have any information on the financial position of the proposed defendants?" This was also a clear response to the email of 20 August.
On 28 January 2014 Mr Rosenblatt again emailed the respondent, at his SCF address, saying that he had tried unsuccessfully to make contact by telephone, referring to the emails of 20 August and 26 September, and repeating: "Can you please advise if SCF is interested in funding."
Seventeen minutes later, Mr Rosenblatt again emailed the respondent, this time at his LCM address, repeating that he had tried unsuccessfully to make contact by telephone, and saying: "Can you please advise if you have any interest interested [sic] in funding." There is no evidence that the respondent replied to this email.
On 12 February 2014 the respondent replied to the SCF email, explaining that he had been overseas, saying that he would resend two previous emails with requests for further information to which he had received no response, and inviting Mr Rosenblatt to let him know if he wanted to arrange a time to discuss. On 20 February 2014 Mr Rosenblatt sent to the respondent, at his SCF address, some documents that he said should satisfy the outstanding request.
The correspondence concluded with two final emails from the respondent, both on his SCF address.
There was also evidence, referred to by the primary judge that in March 2014 the respondent transferred responsibility for the Moore Australasia litigation to Mr Moloney, and that, internally, Mr Moloney sought the respondent's advice with respect to pricing the project.
In my opinion, the primary judge was correct in his conclusion that any dealings the respondent had with Mr Farnsworth (or Mr Rosenblatt) were undertaken in his SCF capacity.
The second matter raised belatedly concerned the reliance by the primary judge on the absence of evidence that the respondent had solicited or invited Mr Farnsworth to make the application.
It was accepted that, had there been evidence that the contact with Mr Farnsworth had been initiated by the respondent, that would have been relevant to the issue of whether there had been direct dealings between the two. The contrary, it was submitted, was irrelevant.
It certainly was not necessary, for there to have been direct dealings, that the respondent was the initiator. But I do not read the primary judge to have treated the issue on that basis. His references to the absence of evidence that the respondent initiated the contact were no more than recognition of the absence of what would otherwise have been a relevant, and potentially important, consideration.
None of the grounds raised having been made good, I would dismiss the appeal.
At the conclusion of the argument, the respondent was given leave to raise a new issue concerning the construction of the undertaking, that being whether the direct dealing asserted must have been undertaken at a time when Mr Farnsworth was a client of LCM. (It was plain that, at the time of his initial approach, Mr Farnsworth was not a client; nor, perhaps, was he a client at the time the respondent signed the funding agreement, although that was the instrument by which he became a client.)
Having regard to the views I have reached concerning the grounds advanced by the appellant, it is unnecessary to proceed to determine the issue. Similarly, it is unnecessary to address the grounds stated in the Notice of Contention.
The orders I propose are: (1) Appeal dismissed; (2) Appellant to pay the respondent's costs.
EMMETT AJA: The question in this appeal is whether the respondent, Mr Patrick Coope, was guilty of contempt in respect of undertakings given by him to a judge of the Equity Division. The undertakings in question arose in litigation between LCM and Mr Coope arising out of a contract of employment between LCM and Mr Coope. The charge of contempt was brought against Mr Coope by the appellant, LCM Litigation Fund Pty Ltd (LCM). On 1 September 2016, another judge of the Equity Division (the primary judge) dismissed the charge against Mr Coope.
Relevantly for present purposes, Mr Coope undertook to the Court not to solicit, canvass, approach or accept any approach to perform any work for or perform any work for (or attempt to do any of the foregoing) any client with whom Mr Coope has had direct dealings, or for whom Mr Coope performed work, within the two years prior to the date of termination of his employment by LCM. On 8 September 2015, Mr Coope sent an email to Mr Adam Farnsworth from the email account of Vannin Capital (Vannin), asserting that Vannin was an established, fully-capitalised and experienced litigation funder with a global portfolio of cases. The email introduced Mr Farnsworth "to some of the Vannin legal team". Mr Coope provided his updated contact details.
Mr Farnsworth is the liquidator of Moore Australasia Pty Ltd (In Liquidation) (Moore Australasia) and was, at 15 April 2016, the date on which the amended statement of charge was filed, receiving litigation funding from LCM. The amended statement of charge asserted that Mr Farnsworth was a client with whom Mr Coope had had direct dealings "in regards to the Moore Australasia litigation" within two years prior to the date of termination of his employment, being the period 31 March 2013 to 31 March 2015. As the result of an error, the amended statement of charge also asserted that Mr Farnsworth was a client for whom Mr Coope had performed work "in respect of the Huon litigation". It is clear enough that the reference to "the Huon litigation" was intended to be a reference to "the Moore Australasia litigation".
The question before the primary judge was whether, within the period of two years to which reference has just been made, Mr Coope had had "direct dealings" with Mr Farnsworth in relation to litigation involving Moore Australasia. His Honour concluded that, although Mr Coope, in his capacity as an officer of Small Claims Funding Pty Ltd, which was the trustee of the Small Claims Fund (SCF), had had dealings with Mr Farnsworth during the relevant period, he had not had direct dealings with Mr Farnsworth in his capacity as an employee of LCM.
Small Claims Funding Pty Ltd was a subsidiary of LCM. All of the units in the SCF were owned equally by companies associated with Mr Coope and Mr Moloney, the principal officer of LCM. The companies associated with Mr Coope and Mr Moloney were responsible for providing all of the capital required for the SCF to operate and provide litigation funding. The SCF was established to enable Mr Coope and Mr Moloney to undertake small litigation funding projects, preferably those in which Mr Moloney could be the solicitor on the record so as to reduce the required amount of funding. At the relevant time, LCM did not have the financial resources to undertake small litigation funding projects. Mr Coope maintained email addresses both for LCM and the SCF.
On 20 August 2013, Mr Martin Rosenblatt sent an email to Mr Coope at his SCF email address. Mr Farnsworth, who was a client of Mr Rosenblatt, received a copy of the email. While the email attached a letter addressed to "LCM Litigation Fund" the email was sent to Mr Coope's SCF email address. The email attached an LCM proposal form in connection with a proposed claim by Mr Farnsworth as liquidator of Moore Australasia. The letter contemplated that LCM would evaluate whether it was interested in providing litigation funding to Mr Farnsworth. Two additional emails were sent on the same day to Mr Coope at his SCF email address providing additional information in connection with the proposal for litigation funding.
On 26 September 2013, Mr Rosenblatt sent a further email to Mr Coope at his SCF email address. After referring to the email of 20 August 2013, Mr Rosenblatt asked whether SCF was interested in funding. On 9 October 2013, Mr Coope sent an email to Mr Rosenblatt from his SCF email address seeking some missing information. The email was clearly written by Mr Coope on behalf of SCF. Mr Coope sent another email to Mr Rosenblatt on 9 October 2013 seeking information concerning the financial position of proposed defendants. A copy was sent to Mr Farnsworth. It was clear that that email was also written by Mr Coope on behalf of SCF.
On 28 January 2014, Mr Rosenblatt sent another email to Mr Coope at his SCF email address asking whether SCF was interested in funding. Mr Rosenblatt also sent an email on the same day to Mr Coope at his LCM email address asking whether "you have any interest" in funding. Some significance is attached to the distinction between the two emails of 28 January 2014.
On 12 February 2014, Mr Coope sent an email to Mr Rosenblatt, with a copy to Mr Farnsworth, from his SCF email address. He said that he had been overseas for work and that he had not received replies to emails that he had sent the previous year. That email was clearly sent on behalf of SCF and was sent in reply to Mr Rosenblatt's email of 28 January 2014 addressed to the SCF address. Mr Coope did not reply to the email that was sent to him on 28 January 2014 at the LCM address.
On 20 February 2014, Mr Rosenblatt sent to Mr Coope, at his SCF email address, an email containing additional information. Mr Coope replied on 19 March 2014 from his SCF email address.
At the same time on 19 March 2014, Mr Coope sent from his SCF email address an email to Mr Moloney concerning Moore Australasia. Mr Coope said that he was going to send to Mr Moloney some further papers for him to consider that he, Mr Coope, reviewed "a while ago". Shortly afterwards, Mr Coope sent a second email to Mr Moloney attaching documents.
On 19 March 2014, Mr Coope transferred responsibility for the Moore Australasia litigation funding to Mr Moloney. He could not recall having any further direct dealings with anyone concerning Mr Farnsworth's application for litigation funding after that date.
On 16 April 2014, Mr Moloney sent an email to Mr Coope at his LCM email address seeking assistance as to how he should price the Moore Australasia project. Mr Coope responded on 17 April 2014 from his LCM email address expressing his view about "pricing". On 24 April 2014, Mr Coope sent a further email to Mr Moloney from his LCM email address providing advice as to what LCM should do if the solicitors were proposing to act on a speculative basis.
On 29 May 2014, LCM entered into a litigation funding agreement. The other parties to the funding agreement were Moore Australasia and Mr Farnsworth, in his capacity as liquidator of Moore Australasia. The litigation funding agreement was signed by Mr Coope on behalf of LCM as one of its directors. The agreement identified Mr Coope as the "representative" for LCM. Under the agreement, the representative was appointed to represent and bind LCM with respect to all matters pertaining to the agreement. The representative was entitled to be present at any discussion concerning possible settlement of the litigation and notices were to be given to the representative. The representative also had a role in dispute resolution. However, there is no evidence that Mr Coope took any step whatsoever, or was engaged in any way in a practical sense, on behalf of LCM as its representative under the litigation funding agreement.
I have had the advantage of reading in draft form the proposed reasons of Simpson JA. For the reasons proposed by her Honour, I do not consider that the material summarised above supports a conclusion that Mr Farnsworth was a client of LCM with whom Mr Coope had had direct dealings, or for whom Mr Coope performed work within the relevant two-year period. Accordingly, I agree with Simpson JA that the appeal should be dismissed and that LCM should be ordered to pay Mr Coope's costs of the appeal.

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: 11 August 2017

Solicitors: Piper Alderman (Appellant) Esplins (Respondent) File Number(s): 2016/271596 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: LCM Litigation Fund Pty Ltd v Coope [2016] NSWSC 1221 Date of Decision: 1 September 2016 Before: Robb J File Number(s): 2015/359582

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