Nash v Timbercorp Finance Pty Ltd (in liq), in the matter of the bankrupt estate of Nash [2019] FCA 957

Nash v Timbercorp Finance Pty Ltd (in liq), in the matter of the bankrupt estate of Nash [2019] FCA 957

Mr Nash, as examinee and former client, has standing to seek restraint. Mills Oakley may continue to act for the liquidators provided the five named Restrained Persons (having viewed confidential information) are removed, undertakings are provided, and information barriers implemented. No duty of loyalty basis for restraint. Proper administration of justice requires removal of Restrained Persons. Access to supporting affidavit is denied to avoid frustration of examination process.

Jurisdiction
Australia
Judgment Date
21 June 2019
Procedural Posture
Interim Application in a Bankruptcy Examination / Post Public Examination, Application for Injunctive Relief and Access to Affidavit
Outcome
Application for access to supporting affidavit dismissed; partial restraint orders granted; Mills Oakley may act for liquidators subject to undertakings and information barriers; each party to bear own costs.
Legal Topics
['public Examination' 'confidential Information' 'conflict of Interest' 'duty of Loyalty' 'administration of Justice' 'standing for Restraining Solicitors' 'information Barrier']
['practice and Procedure' 'legal Practitioners' 'bankruptcy and Insolvency'] ['public Examination' 'confidential Information' 'conflict of Interest' 'duty of Loyalty' 'administration of Justice' 'standing for Restraining Solicitors' 'information Barrier']

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Procedural Posture

Interim Application in a Bankruptcy Examination / Post Public Examination, Application for Injunctive Relief and Access to Affidavit

Legal Issues

  1. 1 ['Whether examinee in bankruptcy examination has standing to seek injunctive relief restraining solicitor' 'Whether real and sensible risk of misuse of confidential information by law firm acting against former client' 'Whether breach of duty of loyalty owed by law firm to former client' 'Whether perception of conflict contrary to proper administration of justice' 'Whether examinee is entitled to access affidavit supporting application for examination summons']

Ratio Decidendi

Mr Nash, as examinee and former client, has standing to seek restraint. Mills Oakley may continue to act for the liquidators provided the five named Restrained Persons (having viewed confidential information) are removed, undertakings are provided, and information barriers implemented. No duty of loyalty basis for restraint. Proper administration of justice requires removal of Restrained Persons. Access to supporting affidavit is denied to avoid frustration of examination process.

Court Disposition

Application for access to supporting affidavit dismissed; partial restraint orders granted; Mills Oakley may act for liquidators subject to undertakings and information barriers; each party to bear own costs.

Orders

  • ['Dismissed application for access to supporting affidavit.' 'Liquidators restrained from retaining named five individuals at Mills Oakley (Restrained Persons) in examination/advice.' "Liquidators' solicitors to provide undertakings for all involved except Restrained Persons (Revised Examination Lawyers)." 'Any new...