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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Yarwood (Deceased) v Smith  QSC 89
MICHAEL DERMOTT YARWOOD
JOSEPH WILLIAM SMITH
MIAMI MOTORS PTY LTD ACN 009 812 266
(Plaintiff by Counterclaim)
BS 5866 of 2018
Application filed 8 April 2020
Supreme Court at Brisbane
On the papers
22 April 2020
The order of the Court is:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – RELEASE FROM IMPLIED UNDERTAKING – where the defendant and the plaintiff by counterclaim intend to start a further proceeding in this Court – where the defendant and plaintiff by counterclaim applied for orders that would relieve them of their implied undertakings to the Court not to use to use the documents comprised in the Affidavit of Michael Dermott Yarwood filed 6 November 2018 other than for the purposes of this proceeding – where they also applied to vary or vacate part of an order made on 25 September 2018 that does not permit Mr Garlick to have access to the documents – where the plaintiff consents to the proposed use and access – where the court released the defendant and plaintiff by counterclaim of their implied undertaking to the Court – where the Court ordered that the part of the 25 September 2018 order that restricted access be vacated.
Bankruptcy Act 1966 (Cth), Part 11
Powers of Attorney Act 1998 (Qld)
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Hearne v Street (2008) 235 CLR 125
Liberty Funding Pty Ltd v Phoenix Capital Ltd  FCAFC 3
Minister for Education v Bailey (2003) 23 WAR 149
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
J Matthews for the defendant and plaintiff by counterclaim
QBM Lawyers for the defendant and plaintiff by counterclaim
- JACKSON J: The plaintiff in the proceeding brought the claim against the defendant claiming the sum of $1,949,062.05 under an agreement in writing described as the Management and Administrative Services Agreement made 17 January 2017 as varied by a written Deed of Variation dated 17 October 2017. The statement of claim alleges that the defendant terminated the agreement on 26 May 2018 and claims the amount as management fees.
- The defendant defends the claim and with the plaintiff by counterclaim counterclaims the sum of $4,967,302 on a variety of grounds relating to unconscionable conduct, breaches of the duty of an attorney holding powers of attorney pursuant to the provisions of the Powers of Attorney Act 1998 (Qld) and breaches of the obligation of an agent to an account of money received for the benefit of the principal.
- On 25 September 2018, Douglas J made an interlocutory order in the proceeding that, inter alia, ordered the plaintiff to file and serve a summary of receipts and expenditure under each of two powers of attorney and to produce documents identified in a report of an expert.
- Further provision was made by the order as to the documents produced as identified in the expert’s report, that access to inspection of such documents be restricted to the defendant’s legal representatives, any expert retained, and employees of either, but not to include Christopher John Garlick, a retainer of the defendant. Liberty to apply was granted.
- On 6 November 2018, the plaintiff filed an affidavit exhibiting various documents and bank statements in compliance with the order.
- Between that date and 30 August 2019, the plaintiff died.
- On 30 August 2019, David Clout was appointed to administer the deceased estate of the plaintiff pursuant to Part 11 of the Bankruptcy Act 1966 (Cth).
- The defendant and the plaintiff by counterclaim intend to start a further proceeding against a solicitor, David Allan Evans, for damages in connection with the loss of money they allege was caused by the plaintiff’s conduct. A copy of the proposed claim and statement of claim, settled by senior counsel, have been forwarded to the solicitors for Mr Evans for the purposes of without prejudice discussions.
- Mr Evans’ solicitors have requested copies of various documents and information relating to the defendant and plaintiff by counterclaims’ claims in the draft statement of claim against Mr Evans.
- The documents and information requested include documents relating to decommissioning works and term deposits that are comprised in the plaintiff’s affidavit.
- The defendant and plaintiff by counterclaim seek to use the documents comprised in the plaintiff’s affidavit for the purpose of the proposed proceeding against Mr Evans and to provide copies of them to the solicitors for Mr Evans.
- To that end, they apply for orders that would relieve them of their implied undertakings to the Court not to use the documents other than for the purposes of this proceeding and also to vary or vacate that part of Douglas J’s order made on 25 September 2018 that does not permit Mr Garlick to having access to the documents.
- Mr Clout consents to the proposed use and access.
- For the purposes of this application, the defendant and plaintiff by counterclaim assume the existence of the implied undertakings in relation to the plaintiff’s affidavit in the usual terms.
- The application is also made on the basis that it is necessary to seek an order of the Court, even though the party making the discovery has given informed consent. It is unnecessary to discuss that proposition further in order to decide this application.
- Numerous cases have considered the circumstances in which a party may be relieved from the implied undertaking.
- A not uncommon case for relief to be sought is where the document obtained in one proceeding is necessary to start a separate proceeding.
- The substance of the proceeding the defendant and plaintiff by counterclaim propose to start against Mr Evans is that the plaintiff in the present proceeding obtained payment of monies held by Mr Evans or his firm improperly and in circumstances where Mr Evans failed to obtain appropriate or necessary authority to pay the money to the plaintiff or to give the defendant or the plaintiff by counterclaim appropriate advice. It seems reasonably clear that the documents to which access is sought and which the defendant and plaintiff by counterclaim seek to use in that proceeding are necessary to enable it to be prosecuted.
- In my view, the orders that are sought should be made.
Hearne v Street (2008) 235 CLR 125, .
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 321.
For examples only, see Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225 and Liberty Funding Pty Ltd v Phoenix Capital Ltd  FCAFC 3, .
Minister for Education v Bailey (2003) 23 WAR 149.
- Published Case Name:
Yarwood (Deceased) v Smith
- Shortened Case Name:
Yarwood (Deceased) v Smith
 QSC 89
23 Apr 2020