Citation: Unreported, Supreme Court of Victoria, Delany J, 15 March 2022
On Tuesday 15 March 2022, the Supreme Court of Victoria (VSC) handed down its decision in Façade Designs International Pty Ltd (‘Plaintiff’) v Yuanda Vic Pty Ltd (‘Defendant’).
The decision made key findings regarding the need for a 'Chinese wall' when a conflicted solicitor moves to another firm, and the application of the rule in Jones v Dunkel [1959] HCA 8, 101 CLR 298 in security for costs applications: i.e., if the Plaintiff’s evidence concerns only its assets without also saying anything about its liabilities, it may be presumed that the Plaintiff is impecunious.
There were two main issues before the Court:
- The solicitor who had been acting for the Plaintiff – Daniel Fitzpatrick of the Sydney office of Piper Alderman – had previously acted for the Defendant and companies related to the Defendant. By a series of concessions extracted over a period of time, the Defendant was successful in getting Mr Fitzpatrick disqualified from acting for the Plaintiff, together with the whole of his team in Sydney. Additionally, on the day of the hearing, the Defendant obtained further undertakings by Piper Alderman provided to the Court inter alia to quarantine their files.
- The Defendant also argued that the Plaintiff was impecunious and sought security for their costs. Delaney J ordered the sum of $200,000 as security for the Defendant’s costs up to the close of pleadings. In doing so, he found the Plaintiff’s evidence to be one-sided as assets were listed without liabilities being disclosed and, as a result, the evidence was not persuasive that the Plaintiff was likely to be in a position to pay the Defendant’s costs if ordered to do so.
Keating Chambers’ International Member Robert Fenwick Elliott appeared for the successful Defendant, instructed by Fusion Legal. Click here to download the full judgement in Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd.