Li v Wu

The claims 10 By his statement of claim filed on 30 September 2011 Mr Li claims that Mr Wu is liable to pay him certain sums of money in connection with two contracts. The first contract relates to a company named Golden Enterprises Investment Pty Ltd (GEI), which is subject to a deed of company arrangement. Mr Li and Mr Wu are both shareholders in GEI. Mr Li alleges that the shareholders entered into a shareholders' agreement (the GEI shareholders' agreement) which provided for shareholders to indemnify each other for loans to GEI if GEI could not repay the loans in certain proportions. Mr Li alleges he made loans to GEI which GEI is unable to repay with the consequence that, under the GEI shareholders' agreement, Mr Wu is liable to repay Mr Li a proportion of the loan. The second contract relates to a company named Spring Grove Enterprise Investment Pty Ltd (in liquidation) (Spring Grove). Mr Li and Mr Wu are both shareholders in Spring Grove. Mr Li alleges that the shareholders entered into a shareholders' agreement (the Spring Grove shareholders' agreement) which provided for shareholders to indemnify each other for loans to Spring Grove if Spring Grove could not repay the loans in certain proportions. Mr Li alleges he made loans to Spring Grove which Spring Grove is unable to repay with the consequence that, under the Spring Grove shareholders' agreement, Mr Wu is liable to repay Mr Li a proportion of the loan.

The evidence 11 Mr Wu did not give evidence. His solicitor, Ms Jaleh Johanessen, gave evidence in two affidavits on information and belief and identified a number of documents said to support Mr Wu's case. It was not suggested that Mr Wu was unavailable to give evidence. To the contrary, it was common ground that he was present in court at the hearing. Mr Gavagna gave evidence by way of affidavit and in Court. 12 The facts about which there may be no dispute are these. 13 First, Mr Wu granted to Mr Gavagna a general power of attorney on 17 August 2007. The power of attorney was withdrawn in November 2011, after the commencement of this proceeding in which Mr Gavagna acts for Mr Li against Mr Wu. Accordingly, while the power of attorney remained on foot Mr Gavagna, acting for Mr Li against Mr Wu, took all of the usual steps before litigation is commenced and in fact commenced the litigation by the filing of the originating process and statement of claim on 30 September 2011. 14 Second, there is no evidence that Mr Gavagna ever exercised the power of attorney on Mr Wu's behalf. As noted, the power of attorney has been withdrawn. 15 Third, there have been various dealings between Mr Wu and Mr Gavagna and/or the firm of which Mr Gavagna is the sole solicitor-director, Goodman Law, since 2006 including the following: (1) A communication in September 2006 in which Mr Wu asked Mr Gavagna a series of questions about what appears to be a proposed contract relating to oil shipments to China. Mr Gavagna said he would discuss it with Mr Wu but it is unclear what, if anything, eventuated from this communication. (2) A communication in April 2007 in which Mr Gavagna forwarded by email to Mr Wu an information memorandum which had been sent to him about the sale of properties at Forrest. It is unclear what, if anything, eventuated from this communication. (3) Communications in July 2007 concerning the sale of a property at Downer to a company associated with Mr Wu in which Mr Gavagna took instructions from Mr Wu on the sale. (4) Entry into a deed of settlement on 27 July 2007 by Mr Gavagna as settlor and Miranda Properties (ACT) Pty Ltd as trustee, the beneficiaries of the trust being Mr Wu and his family. Goodman Law prepared the deed of trust and Mr Gavagna executed the deed as the settler. (5) A communication in September 2007 in which Mr Gavagna forwarded Mr Wu information about a property at Waterpoint Lakeside. It is unclear what, if anything, eventuated from this communication. (6) A communication in November 2007 in which Mr Gavagna forwarded by email to Mr Wu information about a property at Masson Street. It is unclear what, if anything, eventuated from this communication. (7) Communications from around November 2007 concerning GEI's interest in purchasing a property at Hope Island. Mr Gavagna was forwarded the draft contract for sale as solicitor for GEI. Mr Gavagna took instructions from Mr Wu in respect of GEI's proposed purchase. The sale to GEI did not proceed. (8) Communications in November 2007 concerning a proposed project at Lyneham by Golden International Investment Pty Ltd (a company associated with Mr Wu). Mr Gavagna gave a brief point form advice about the design drawings for the proposed development, suggesting (amongst other things) that a separate entity be used to do "this work" as "you can then transfer all the work to somebody else when you construct the project…". (9) A communication in March 2008 in which Mr Gavagna forwarded by email to Mr Wu information about a property at Hume. This communication resulted from an earlier communication between Mr Gavagna and the real estate agent for the property. Mr Gavagna sent an email to the agent confirming that he acted for Mr Wu and GEI which was interested in purchasing the Hume property, requesting that the price and sale conditions be specified and noting that he (Mr Gavagna) looked forward to receiving the information about the property. Mr Gavagna received this information and forwarded it on to Mr Wu. It is unclear what, if anything, eventuated from these communications. (10) Communications in March 2008 concerning the sale of a property at Mitchell to Mr Wu in which Mr Gavagna acted for Mr Wu and/or a company in respect of which Mr Wu gave Mr Gavagna instructions. (11) At least two lunches involving Mr Wu and Mr Gavagna in 2008. (12) A communication in May 2008 in respect of a trip to China Mr Gavagna (and others) made, during which Mr Gavagna met Mr Li and Mr Wu. Mr Gavagna made this trip at the invitation of Mr Li and inspected various business enterprises Mr Li had in China. Mr Gavagna paid all his own expenses for the trip. (13) A communication in May 2008 in which Mr Gavagna forwarded by email to Mr Wu information about an investment opportunity relating to pharmaceuticals. It is unclear what, if anything, eventuated from this communication. (14) A communication in July 2008 in which Mr Gavagna forwarded by email to Mr Wu information about a property at Franklin. It is unclear what, if anything, eventuated from this communication. (15) An invitation by Mr Gavagna to Mr Wu and his wife to attend a concert. (16) An invitation by Mr Gavagna to Mr Wu on 15 August 2008 to attend a political fundraising lunch. (17) An invitation by Mr Wu and his family to Mr Gavagna and his family in January 2009 to attend a Spring Festival function at Mr Wu's home. (18) Communications in May 2009 in which Mr Gavagna offered to introduce Mr Wu to a client who installed solar panels in the ACT. It is unclear what, if anything, eventuated from this communication. (19) A communication in July 2009 in which Mr Gavagna asked Mr Wu whether he had heard of certain people. It is unclear what, if anything, eventuated from this communication. (20) A communication in August 2009 in which Mr Gavagna forwarded by email to Mr Wu information about a property at Mugga Lane. (21) Mr Wu and Mr Gavagna met for dinner in October 2009. (22) Communications in January and February 2010 in which Mr Gavagna acted on Mr Wu's behalf in offering to purchase two companies. (23) Communications in 2010 up to May 2011 in which Goodman Law acted for Mr Wu and a Mr Lau (involved in a company LW Homes Pty Ltd) in respect of the purchase of a property at Macgregor. It appears that the purchase was completed on or about May 2011. Before completion, Mr Gavagna acted on behalf of LW Homes taking instructions from Mr Lau and Mr Wu in respect of a notice to complete and commencing proceedings on behalf of LW Homes. As a consequence Mr Gavagna negotiated a deed dated 1 February 2010 by which the time for completion was extended. Mr Gavagna also signed the deed on behalf of LW Homes on instructions from Mr Wu. He did not exercise Mr Wu's power of attorney for this purpose. 16 Ms Johannessen gave evidence by way of affidavit on information and belief to the effect that: - (i) although Mr Wu has used other solicitors from time to time he has retained Mr Gavagna's firm on matters since 2006, (ii) Mr Wu had formed a close personal relationship with Mr Gavagna, and (iii) through his dealings with Mr Wu Mr Gavagna had "obtained detailed confidential knowledge of Mr Wu's commercial dealings, financial affairs and personal assets and circumstances which he could use against Mr Wu in the current proceedings". Ms Johannessen said (and it was submitted on Mr Wu's behalf) that the following inferences should be drawn: - (i) in order to provide Mr Wu with the various investment opportunities he had Mr Gavagna must have had detailed knowledge of Mr Wu's affairs, (ii) from acting for Mr Wu or associated companies on various property purchases Mr Gavagna learned what assets Mr Wu had, his financial position and "his usual approach to assessing potential profit from an investment", and (iii) from acting in respect of the family trust for Mr Wu Mr Gavagna obtained access to all of Mr Wu's "confidential financial and personal family circumstances", including his "succession and estate planning". 17 Mr Gavagna gave evidence to the effect that he had never obtained "detailed confidential knowledge of Mr Wu's commercial dealings, financial affairs and personal assets and circumstances". He denied that he obtained such information in the course of any of his dealings with Mr Wu, including the proposition that, as a matter of necessity, a competent solicitor must or would have obtained such information given the nature of the work he or his firm carried out on Mr Wu's instructions.

Confidential information ground 18 In response to my request to identify with precision the confidential information said to have been communicated by Mr Wu to Mr Gavagna and/or his firm, counsel for Mr Wu said: - (i) broad information about the commercial arrangements Mr Wu has, (ii) what Mr Wu's various companies are, (iii) what Mr Wu's family arrangements are, (iv) what Mr Wu's financial arrangements are, including, for example, how quickly he can come up with money and where Mr Wu's assets are, (v) Mr Wu's approach to business and investments and the sort of returns he looks for, and (vi) the sort of person Mr Wu is and the way he responds to different sorts of pressure. 19 This is a weak case. Mr Wu did not give evidence. No explanation for this fact has been provided. As such, none of the assertions of the communication of confidential information have been able to be effectively tested. While Ms Johannessen's evidence on information and belief is admissible, it remains hearsay. The weight which her evidence should be given, particularly when weighed against the other direct evidence available, is affected by its hearsay character. It is also affected by the broad and general, even vague, terms in which it is cast. The evidence fails to identify with any degree of precision the confidential information said to have been obtained by Mr Gavagna or his firm. The evidence remained at the level of general assertion either that such information was obtained or must have been obtained given the nature of the work carried out on Mr Wu's behalf. Given Mr Gavagna's evidence about the work he recalls carrying out (admittedly his recollection is understandably patchy) and the documents in evidence the case for Mr Wu that any confidential information was obtained is unpersuasive. Taking the family trust deed as an example, on its face it appears to be a pro-forma deed (even to the extent that certain parts have not been completed). Nothing in the deed indicates the communication of any confidential information from Mr Wu in the course of its preparation. Mr Gavagna gave evidence that the deed is in the Goodman Law precedent document form, with the relevant names and beneficiaries identified. Mr Gavagna did not accept that he or Goodman Law should or must have obtained confidential information in order to prepare this deed. I agree. Much would depend on the client's instructions. In this case, Mr Wu did not give evidence. On the basis of the whole of the evidence it should not be inferred that any confidential information was obtained by Mr Gavagna or his firm in respect of this deed. The same reasoning applies to each of the other dealings on which Mr Wu relied. The evidence is simply insufficient and unpersuasive. 20 As the respondent put it, this case fails at each stage of the required analysis on the confidential information ground: - (i) the information said to be confidential has not been identified with the required degree of particularity - it remains at the level of vague and ungeneralised assertion, (ii) the evidence weighs heavily against the drawing of any inference that any such information, said to be confidential, was in fact ever obtained by Mr Gavagna in the course of work carried out for Mr Wu and/or companies with which he was associated, (iii) even if some of the alleged information was obtained, there is an insufficient evidentiary foundation for accepting that the information was either confidential at the time or remains so presently, and (iv) it is difficult to see any real relationship between the alleged confidential information and the claims in this proceeding and, hence, the question of potential detriment remains at large, unassisted by the generalised assertions on Mr Wu's behalf. Insofar as it was submitted for Mr Wu that his state of mind and intentions might be relevant to the contracts in dispute in the proceeding, the difficulty is not that such evidence might be inadmissible (it may be assumed for present purposes to be admissible), but that the evidence does not support any inference that anything confidential about Mr Wu's intentions, beliefs, character or personality was ever imparted to Mr Gavagna or his firm in their dealings with Mr Wu generally or, indeed, in any way connected with the actual contracts in question in the proceeding. 21 It is also apparent that the present case bears no resemblance to the facts in Yunghanns. Insofar as that case turned on the so-called "getting to know you" factors (noting that there were other bases for the decision, not the least of which being that the solicitors acted for both parties on transactions which founded the cause of action in the relevant litigation), Mr Yunghanns himself gave evidence "that he imparted confidential information to the solicitors about strategy, risks and returns in litigation, takeovers and other business dealings and the solicitors had obtained an intimate understanding of his approach to these matters". There is nothing equivalent in the present case. 22 In conclusion, a reasonable observer, aware of the relevant facts, would not think that there was a real, as opposed to a theoretical possibility that confidential information given to Mr Gavagna or his firm by Mr Wu might be used by Mr Gavagna or his firm to advance the interests of Mr Li to the detriment of Mr Wu. Mere assertion, such as set out in correspondence from Mr Wu's solicitor to Mr Gavagna and otherwise, does not make it so.

Administration of justice ground 23 This aspect of the case is also weak. Insofar as the case relied on the power of attorney, the facts are, first, it no longer exists and, second, it was never exercised. These facts are sufficient to found the conclusion that the power of attorney is not a sufficient foundation for the making of the order sought. If it is necessary to go further, I note that I accept the submissions for Mr Li that the mere fact that Mr Gavagna held a power of attorney for Mr Wu did not mean he was subject to fiduciary obligations to Mr Wu in all circumstances. If and when any circumstance arose calling for consideration of exercise of the power of attorney, then Mr Gavagna would have been subject to fiduciary obligations. There is no evidence of any such circumstance arising before the withdrawal of the power of attorney. 24 Otherwise, the basis for the claim that the protection of the administration of justice requires that Mr Gavagna and his firm be restrained from acting for Mr Li against Mr Wu remains unclear. Insofar as it relied on the alleged confidential information, it must be rejected. Otherwise, it amounted to the now withdrawn power of attorney and the fact that Mr Gavagna and his firm had previously carried out legal work for Mr Wu and associated companies. I am unable to see how anything in all of the circumstances would cause a fair-minded, reasonably informed member of the public to conclude that the proper administration of justice requires that Mr Gavagna and his firm should be prevented from acting for Mr Li, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. 25 Given these conclusions it is not necessary to consider the issue of delay and prejudice to Mr Li. If necessary to say so, I do not consider the delay can be measured from March 2011 (when Mr Wu's solicitors put Mr Gavagna on notice of the alleged issues of concern, albeit without identifying any confidential information despite being asked to do so). It seems to me the relevant delay is between 30 September 2011 and 23 November 2011, which is not particularly lengthy. If I had found for Mr Wu on either ground, the discretionary considerations would not have persuaded me to decline relief. However, as I have found against Mr Wu on both bases, it follows that the interlocutory application, insofar as it sought an injunction, should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.