Dyce v David Landa Stewart Pty Ltd

1. [1]

   By summons filed on 24 February 2020, Peter Dyce, PL Dyce Pty Ltd, Marion Lewis Pty Ltd, Loch Ness Real Estate Pty Ltd, Lidcombe Investments Pty Ltd, Richmond Export Pty Ltd and Ivan Dyce Pty Ltd (the plaintiffs) sought an order pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) (the Uniform Law) that David Landa Stewart Pty Ltd (the defendant) deliver up all of the documents it holds which relate to the plaintiffs.

2. [2]

   Peter Dyce, the first plaintiff, was born in 1929. He no longer presses the relief sought in the summons. It was common ground that he no longer has sufficient capacity to give instructions without a tutor. The remaining plaintiffs (the companies) are owned or controlled by Peter and members of his family. The ultimate shareholders of the companies are Peter and his three children, Danny, David and Devorah (sometimes referred to in the documents as Deborah). As at 2019, Peter, David and Devorah were, variously, directors of the companies, as set out below.

3. [3]

   The companies’ case is that they have instructed and directed Simon Singer (the managing director of the defendant) to deliver up the companies’ documents to their new solicitors, HWL Ebsworth, but that he has refused to do so. Mr Harris SC, who appeared with Mr Atlan on behalf of the companies, submitted that Mr Singer had no valid reason for refusing to deliver up the documents and that his refusal reflected his disinclination to lose the companies as clients.

4. [4]

   Mr Armfield, who appeared on behalf of the defendant, submitted that no valid authority has been received from the companies for delivery up of the companies’ documents and, accordingly, the summons should be dismissed with costs.

5. [5]

   By reason of the submissions made by the parties, it is necessary to summarise the factual background to the dispute.

The facts

1. [6]

   Peter was born in 1929 in Zagreb, Croatia. He subsequently migrated to Australia. He married Betty and had three children. Betty died in 2013.

2. [7]

   From about the late 1950’s, David Singer (Mr Singer senior) acted for Ivan Dyce (Peter’s father), Peter and his companies as their solicitor and primary adviser. In 2002, Mr Singer senior transferred the practice of the defendant to his son, Simon (Mr Singer), who also acted as the plaintiffs’ solicitor and principal adviser. Mr Singer senior, and subsequently Simon, took instructions personally from Ivan, and later Peter, relating to the transactions and property development business in which the companies were engaged. Mr Singer senior, and subsequently Simon, also acted for Peter’s wife, Betty, and, on occasions, their children.

3. [8]

   The plaintiffs’ wealth is considerable. An estimate in 2019 was that their real estate interests had a combined worth of $70m and their managed share portfolio was worth $10m.

4. [9]

   In the course of his work as Peter’s solicitor, Mr Singer (and his father before him) became aware of tensions and conflicts within the family which arose from time to time. According to Mr Singer senior, Peter was irreligious, as was Danny, whom he described as a “free thinker”, but David and Devorah both became “very religious” which led to tensions between the siblings. Each of the children approached their father and asked for particular expenses to be paid, which at times produced conflict between the siblings. Mr Singer became aware of payments made by Peter to his two sons to settle their Family Law proceedings (both David and Danny have been divorced). There were discussions about changes to Peter’s will to make allowance for such payments during his lifetime.

5. [10]

   Subject to the question of Peter’s incapacity to act as a director (which would have had the effect of removing him from the office of director), the directors of the companies have been, since at least 1993, as follows:

6. [11]

   On 18 July 2011, each of the companies gave Mr Singer a power of attorney to act on its behalf.

7. [12]

   From at least 2017, Peter became concerned about “estate planning issues”: namely, what would happen to the wealth he had created in the event of his incapacity or death. In 2017, Peter revoked two powers of attorney which he had previously executed in favour of David and, on 22 June 2017, executed a document entitled “Enduring Power of Attorney” in favour of Mr Singer (the 2017 Power of Attorney).

8. [13]

   On 7 August 2018, Peter wrote to Mr Singer proposing what Mr Singer regarded as a “radical change from the current arrangements”. Mr Singer arranged to visit Peter on 15 August 2018 to discuss the proposed changes. It was not unusual for Mr Singer to see Peter at his home. He stayed for three hours in total on 15 August 2018. For the first two hours, while David was present, there was discussion about Peter’s will. After David’s departure, Mr Singer discussed with Peter the issues which Peter had raised in his letter of 7 August 2018.

9. [14]

   On 17 August 2018, Mr Singer wrote to Peter to confirm what they had discussed and the instructions he had received. The topics included the number of executors (of Peter’s will); appropriation/liquidation of assets (in which Peter expressed his wish that his assets be transferred to the beneficiaries rather than liquidated); the provision of an office for David, to which the executors would have “full and free access”; and the management fee which would be payable to David in the event that Peter were to lose capacity or die.

10. [15]

    Mr Singer’s letter also included the topic of “Business records”, and said as follows:

11. [16]

    The letter concluded:

12. [17]

    Later in 2018, Peter and Mr Singer met to discuss issues relating to estate planning and the prospect that Peter would make a new will. On 10 October 2018, Mr Singer collected Peter from home and brought him to his office where he executed a codicil to his will. After the documents had been executed, Mr Singer drove Peter back home.

13. [18]

    In June 2019, Danny’s divorce settlement was due to be finalised. The agreed settlement amount to be paid by Danny was $2,200,723.32, about $280,000 of which was to be paid by Danny. The balance was to be paid by Peter. Mr Singer understood that although Peter was willing to make the payment, David objected to his father’s paying that amount. Danny communicated to Mr Singer his concern that David would obstruct the payment, but Mr Singer assured him that Peter would honour his promise to make the payment. Mr Singer, who was concerned that David was controlling Peter (by influencing him not to make the payment to enable Danny’s divorce settlement to be finalised), noted in a file note dated 7 June 2019 that he did not think that Peter had any capacity to act on his own any more. This was the first basis on which Mr Singer refused to relinquish documents relating to Peter to his proposed new solicitors, HWL Ebsworth.

14. [19]

    In about June 2019, Peter contacted HWL Ebsworth with a view to retaining them as his solicitor. Michael Henley a partner of the firm, and Guy Moloney, a senior associate, were the lawyers at the firm who were to act for Peter. I accept Mr Moloney’s evidence that he was “acutely aware” of the potential for conflict between Peter and David and also the need to be satisfied of Peter’s mental capacity to give instructions, having regard to his then age of 90 years.

15. [20]

    In order to assure themselves of Peter’s mental capacity to give instructions, HWL Ebsworth arranged for Peter to be examined by his treating geriatrician, Dr Simon Chalkley, at 9am on 13 June 2019 before the scheduled conference with them at 11am. In an email to Dr Chalkley which was sent on 12 June 2019, HWL Ebsworth said:

16. [21]

    After this consultation, Dr Chalkley spoke to Mr Henley and Mr Moloney about Peter’s capacity to give instructions. He told them that he had been treating Peter for two years, that Peter could be “cued” to recall although he had some “short-term memory problems”, and that Peter had the capacity to request the retrieval of his documents from the defendant.

17. [22]

    Following Peter’s consultation with Dr Chalkley, Mr Moloney and Mr Henley met with Peter and David. They obtained background information from both of them, before they asked David to leave the room so that they could confer with Peter, who was to be their client. In the course of that conference, Peter signed an authority (which had been prepared in advance of the conference) which directed the defendant to release Peter’s documents to HWL Ebsworth. Later that day, Peter instructed HWL Ebsworth not to serve the authority on the defendant yet, as David was to go overseas to attend his son’s wedding and Peter wanted to wait for his return. Although Peter was the firm’s client, at times HWL Ebsworth received information on his behalf from David, in part because Peter did not use email.

18. [23]

    On 13 June 2019, Mr Singer arranged for $1,921,628.32 to be transferred from Peter’s bank account (which then had a balance of $2.095m) to the lawyer who was acting for Danny in respect of his divorce settlement, which was to be finalised that day. He understood this payment to be in accordance with the instructions he had received earlier from Peter. He was authorised to effect the transfer by reason of a power of attorney which he held from Peter. There was no suggestion in these proceedings that the transfer was the subject of challenge. Either at that time or subsequently, Mr Moloney became aware that David was unhappy about the payment for Danny’s benefit (and, I infer, that Mr Singer had made it on Peter’s behalf). The topic of the payment to Danny was one of the matters that David raised when he was present at the conference with Mr Henley, Mr Moloney and Peter at HWL Ebsworth on 13 June 2019.

19. [24]

    Following the first conference with Peter, Mr Henley arranged for a report to be obtained from Dr Chalkley as he appreciated that Peter wanted to change his arrangements, including, potentially, his will. To that end, on 11 July 2019, HWL Ebsworth wrote to Dr Chalkley seeking his detailed opinion about Peter’s capacity to instruct the firm about particular matters. The letter of instructions was eight pages long and informed Dr Chalkley that the firm had been instructed to act for Peter in relation to obtaining originals and copies of documents from his previous lawyers; the revocation of a power of attorney and the appointment of a new power of attorney; and the preparation of a will.

20. [25]

    In the letter of instructions, HWL Ebsworth drew the distinction between a request for a copy of a document and the request for an original document as follows:

21. [26]

    In cross-examination, Mr Moloney confirmed his appreciation of the distinction between a request for copy documents and a request for originals, and accepted that a request for original documents could excite the suspicion of the recipient of such a request that the original documents might be used to “change one’s arrangements”.

22. [27]

    On 23 August 2019, Mr Singer senior (who, though no longer Peter’s solicitor, had a long-standing friendship with him because of their past association) visited Peter at home. He found him “very haggard”. He described his hair as “uncut and unkempt”. Peter was watching television and was relatively uncommunicative. Mr Singer senior took a photograph of Peter, which he annexed to his affidavit.

23. [28]

    On 3 September 2019, Dr Chalkley provided a report to HWL Ebsworth, confirming that he had seen Peter on 29 August 2019. He noted that Peter had been his patient for two and a half years and that, at present, Peter “has cognitive impairment consistent with a dementia that is of mild to moderate severity”. His opinion as to Peter’s mental capacity was as follows:

24. [29]

    Dr Chalkley opined that Peter had the capacity to revoke an existing power of attorney in favour of Mr Singer, execute a new power of attorney in favour of David and that Peter also had testamentary capacity.

25. [30]

    Both Mr Moloney and Mr Singer confirmed that the description given by Dr Chalkley extracted above accorded with their respective experiences of Peter at or about that time.

26. [31]

    On 10 September 2019, Mr Moloney sent to David a copy of the authority for Mr Singer to release documents and asked him to obtain his father’s signature on the authority. He made the request of David because he understood, from previous communications with Peter, that Peter wanted to retrieve his documents from Mr Singer. David obtained Peter’s signature on the document provided and returned it to Mr Moloney.

27. [32]

    By email dated 11 September 2019, Mr Moloney sent to Mr Singer a document entitled, “Authority to release and deliver documents”, which was signed by Peter and dated 10 September 2019. It sought release and delivery of documents held by Mr Singer on Peter’s behalf, including powers of attorney, wills, and superannuation and trust documents. Mr Moloney gave evidence that he made this request on the basis of Dr Chalkley’s opinion expressed in his report of 3 September 2019 that Peter had the relevant capacity to make such a decision and direction.

28. [33]

    Mr Singer responded on 16 September 2019 as follows:

29. [34]

    I note that the highlighted paragraph from the letter extracted above would appear to be incorrect in that, as of August 2018, Mr Singer knew that Peter envisaged that, if he became incapacitated, David would keep all records relating to Peter and his companies in his possession, and access would be given to Peter’s executors in the event of his death. Thus, it was not correct to say that Peter had instructed Mr Singer that he did not want his documents to be released to a third party “under any circumstances”.

30. [35]

    When it was put to Mr Moloney in cross-examination that this letter made him aware of disharmony among Peter’s children, he answered that his understanding at the time was that whatever disharmony there was between David and Devorah “was completely repaired” but that there was disharmony, at least between David and Danny, in part because of the payment made by Peter in respect of the settlement of Danny’s divorce proceedings in June 2019.

31. [36]

    Mr Singer confirmed in cross-examination that he did not believe, when he received the authority signed by Peter on 10 September 2019, or at any time thereafter, that Peter had the capacity to provide that direction to him. If this evidence is to be accepted, it would seem to follow that the conditions precedent which Mr Singer stipulated in his letter of 16 September 2019 for release of Peter’s documents could never be fulfilled, and that he knew that to be the case.

32. [37]

    Mr Moloney replied on 18 September 2019 in the following terms:

33. [38]

    The authority attached to the 18 September 2019 email was signed by Peter on that day. Mr Moloney certified, at the foot of the authority, that he had explained to Peter, without anyone else (other than a note-taker from the firm) present, the nature and effect of the document and that Peter appeared to fully understand the nature and effect of the document which he signed “of his own free will” in Mr Moloney’s presence.

34. [39]

    On 23 September 2019, Mr Singer reiterated his previous request for an authority which complied with his stipulations in the email of 16 September 2019, including that the certification on the authority be given by a solicitor other than one associated with HWL Ebsworth.

35. [40]

    Later that day, at 6.14pm on 23 September 2019, Mr Moloney reproduced extracts from the Law Society of NSW’s website regarding a solicitor’s obligation to act in accordance with a client’s instructions with respect to documents held by the solicitor on behalf of the client. The email also said:

36. [41]

    On 26 September 2019, Mr Singer replied to Mr Moloney. He contended that, for the reasons given earlier, neither the authority signed by Peter on 11 September 2019, nor the authority signed by Peter on 18 September 2019 was sufficient. He alleged that he inferred from his last meeting with Peter on 7 June 2019 that David was exerting “considerable pressure” on Peter. Mr Singer also questioned Peter’s “cognitive competence”, having regard to his behaviour on that day. Mr Singer wrote that it was his “very firm view” that, if Peter was in a position to provide instructions, he would not wish him to release his documents. He said further that he could not release documents unless and until he was satisfied that Peter had the capacity to issue those instructions.

37. [42]

    On 10 October 2019, Mr Moloney wrote to Mr Singer, proposing that both the defendant and HWL Ebsworth write to Dr Chalkley to assess his capacity to request return of the documents and to revoke and remake a power of attorney, and his testamentary capacity. He indicated that Dr Chalkley was available to see Peter on 14 October 2019 but that he was otherwise fully booked until February 2020. Mr Moloney apologised to Mr Singer for the short notice but said that it had taken some time to ascertain Dr Chalkley’s availability. He attached a draft letter of instructions to Dr Chalkley for Mr Singer’s consideration to which the Expert Witness Code of Conduct (in the form of Sch 7 to the Uniform Civil Procedure Rules 2005 (NSW)) was also attached.

38. [43]

    The draft letter of seven pages set out the various questions and referred to relevant legal authorities on the question of capacity. It also set out by way of background Peter’s property interests, held by companies which he was said to own or control, as well as his family situation which was said to be as follows:

39. [44]

    Mr Moloney’s draft letter of instructions concluded by asking Dr Chalkley to send his report to both him and Mr Singer.

40. [45]

    Mr Moloney accepted in cross-examination that, at the time he proposed to Mr Singer that they jointly refer Peter to Dr Chalkley for assessment, he did not disclose to Mr Singer that he already had a report which addressed the substance of the matters which would be sought jointly.

41. [46]

    Mr Singer responded on 11 October 2019. He took exception to several aspects of the draft letter, which he described as “defective in many respects”. He amended the draft letter, so as to include several additional paragraphs relating to the last meeting between Peter and Mr Singer which took place on 7 June 2019 (referred to above). His proposed additions also included a reference to Mr Singer’s impression that Peter was unable to withstand pressure applied to him by David; that David had refused to leave the room during the conference on 7 June 2019; and that David was upset by the fact that Peter had provided financial assistance to Danny for his divorce settlement.

42. [47]

    Mr Moloney replied by email dated 13 October 2019, the day before the proposed appointment with Dr Chalkley on Monday 14 October 2019. Mr Moloney indicated that he had obtained “instructions” from both David and Peter regarding the draft. Although, Mr Moloney used the word “instructions”, I am satisfied that Mr Moloney did not regard David as his client. He confirmed in cross-examination that because Peter was reliant on David for practical matters, such as the use of email, this gave David an opportunity to provide responses to Mr Moloney. However, Mr Moloney regarded Peter as his client and did not, in any way, regard himself as advancing David’s interests. In the email, Mr Moloney described Mr Singer’s additions as containing “cynical and highly subjective assumptions” and as “tendentious, argumentative, repetitive, and highly inappropriate”. He concluded by saying that “our client” (which I accept to be a reference to Peter) did not propose that HWL Ebsworth engage with Mr Singer further. He added:

43. [48]

    On Wednesday, 16 October 2019 Mr Moloney conferred with Peter alone at his office for about an hour. During the conference, Mr Moloney asked him several questions to form an opinion as to Peter’s mental capacity. Mr Moloney had done this on every prior occasion on which he had conferred with Peter. At the end of the conference, having satisfied himself that Peter had the capacity to give him instructions, Mr Moloney put a pad of paper in front of Peter and asked him to write, in his own hand, any message he wished to convey to Mr Singer. Without prompting from Mr Moloney or any other person as to its terms, effect, or nature, Peter wrote:

44. [49]

    On the morning of 18 October 2019, Dr Chalkley saw Peter again in his consulting rooms on Belmore Road, Randwick. The consultation had been arranged by Mr Moloney at short notice and at some inconvenience to Dr Chalkley. As far as Mr Moloney could recall, Devorah had brought Peter to the rooms that day. In addition to Peter and Dr Chalkley, Mr Moloney and his colleague, Jennifer Vuu, were present. In the course of the consultation Peter demonstrated that he was able to recall the names of each of his companies without prompting. As a result of Peter’s presentation on that morning, both Dr Chalkley and Mr Moloney were satisfied that Peter understood the nature and effect of the authorities to be given by the companies to direct Mr Singer to deliver up the companies’ documents and otherwise had sufficient capacity to execute them.

45. [50]

    On or about 18 October 2019, HWL Ebsworth commenced to act for the companies (as well as for Peter), having been instructed by all of the companies’ directors to do so.

46. [51]

    While Peter was being assessed in the consulting room by Dr Chalkley, David and Devorah remained outside in the reception. When Peter had signed the authorities in Dr Chalkley’s rooms, they, too, signed the authorities of the companies of which they were directors.

47. [52]

    Once the directors had signed the authorities on behalf of each of the companies (the 18 October 2019 Authorities), Mr Moloney sent Mr Singer an email which attached the six authorities. The 18 October 2019 Authorities authorised Mr Singer to release “all information” in relation to each particular company. The wording of each followed the same format as follows:

48. [53]

    In the covering email, Mr Moloney described in the detail set out above the circumstances in which the authorities had been signed by the directors. Mr Moloney also attached the document which Peter had written by hand on 16 October 2019 in the conference with Mr Moloney referred to above. Mr Moloney also included in his email the circumstances in which that document had been created (as set out above). He added:

49. [54]

    Mr Singer accepted in cross-examination that, although he did not consider Peter to have the mental capacity to sign the authority, he accepted that the other two directors, David and Devorah had the authority to act on behalf of the companies of which they were directors to require him to release information to HWL Ebsworth. He also accepted that they had the authority to require him to release the companies’ documents to the firm. However, he maintained that he had never received an authority which sought documents rather than information and he regarded the word “information” used in the 18 October 2019 Authorities as insufficient to require the production of documents.

50. [55]

    By email dated 23 October 2019, Mr Singer responded to the companies’ authorities and to Mr Moloney’s email of 18 October 2019. He contended that the email “raises more questions than it seeks to resolve”. He made 13 objections to Peter’s handwritten letter, including that Peter had not obtained independent legal advice; and 12 objections to the companies’ authorities to release, including that the authorities covered release of “information” but not “original documents”; that the directors’ signatures were not witnessed; and that Peter did not expressly state that his previous instructions to Mr Singer not to release documents had been revoked.

51. [56]

    By letter dated 31 October 2019 (but sent under cover of email dated 14 November 2019), Mr Moloney responded to Mr Singer as follows:

52. [57]

    The letter was endorsed by the signatures of Devorah and David, both of which are dated 7 November 2019.

53. [58]

    On 18 November 2019, Mr Moloney wrote to Mr Singer and asked whether he intended to comply with the authorities to release dated 18 October 2019, when the documents would be delivered, and by what authority he continued to retain the companies’ documents. The email concluded:

54. [59]

    By email dated 20 November 2019 sent at 8.06am, Mr Singer wrote to Mr Moloney expressing his “amaze[ment]” “at the extraordinary and time wasting manner in which you were trying to complicate what should really be a simple procedure in our view”. Notwithstanding the change of wording from “information” in the 18 October 2019 Authorities to “all material” in the letter dated 31 October 2019, Mr Singer maintained his contention that the 18 October 2019 Authorities authorised the provision of information and not documents and that he had previously been instructed solely by Peter in relation to the companies’ affairs, and that, accordingly, all authorities needed to be signed by Peter, even if Peter was not a director of the company.

55. [60]

    Further, he insisted that the letter dated 31 October 2019 was not an authority at all, but rather a “letter of endorsement” of the 18 October 2019 Authorities, which, in his view, was insufficient to constitute an authority from the company for the release of the documents because they referred to “information”.

56. [61]

    In his affidavit of 18 September 2020, Mr Singer admitted that he “appreciated that the signatures of [two] directors on any authority to release documents (as opposed to an authority to release information) would ordinarily be sufficient” but contended that it was insufficient in the present case.

57. [62]

    Mr Moloney responded to Mr Singer at 9.15am on 20 November 2019. He reiterated the companies’ request for documents, including, but not limited to, share registers, memoranda and articles of association, certificates of title, leases and mortgages. He foreshadowed that if the documents were not provided, he “may seek instructions to approach the Court”. Mr Moloney confirmed in cross-examination that he regarded himself as acting on the instructions of all of the directors of the companies in making the request.

58. [63]

    There was further correspondence between the two solicitors on 20 November 2019, including an email from Mr Moloney to Mr Singer which attached the 18 October 2019 Authorities, which indicated that each had been signed by Peter.

59. [64]

    On 25 November 2019, Mr Basha, of Bartier Perry Lawyers (Bartier Perry), wrote to Mr Moloney. He advised Mr Moloney that he was now acting for the defendant and requested that all correspondence be sent to him.

60. [65]

    On 28 November 2019, Mr Moloney wrote to Mr Basha setting out the background to the dispute. He set out the measures he had taken to ensure that Peter had the capacity to give him instructions, including arranging for him to be assessed by Dr Chalkley. He annexed Dr Chalkley’s report of 3 September 2019, referred to above, and explained that it had not been provided to Mr Singer previously because of Mr Singer’s apparent dislike and mistrust of David. In his cross-examination, Mr Moloney explained his concern that provision of the report to Mr Singer (before the retainer of Bartier Perry) would make Mr Singer more suspicious of David than he already was but that he provided it to Mr Basha in the hope that the report would act as a “circuit breaker” to demonstrate that HWL Ebsworth was trying to do something for a man (Peter), who wanted to change his lawyers. Before the retainer of Bartier Perry by Mr Singer, Mr Moloney considered his correspondence with Mr Singer to be “something of a closed loop” because of Mr Singer’s “suspicion that David was Peter’s puppet master”. Thus, he considered that to send Dr Chalkley’s report to Mr Singer “would hurt rather than help”.

61. [66]

    In the letter of 28 November 2019 to Mr Basha, Mr Moloney also explained the companies’ request for documents, as follows:

62. [67]

    The letter concluded by foreshadowing that, if Mr Basha did not confirm by 4 December 2019 that Mr Singer would provide the documents, the plaintiffs would commence proceedings to obtain the documents and rely on the letter on the question of costs.

63. [68]

    On 4 December 2019, Mr Basha responded to Mr Moloney’s letter of 28 November 2019. In his response, Mr Basha outlined Mr Singer’s concerns, including that HWL Ebsworth was in a position of conflict; that Peter had not expressed dissatisfaction to either Mr Singer, or his father, Mr Singer senior, when the latter paid him a social visit on 23 August 2019; that HWL Ebsworth’s letter to Dr Chalkley was inaccurate and incomplete (25 errors were listed, including Peter’s date of birth and the absence of reference to the liabilities of Peter and the companies); and that Dr Chalkley had not mentioned that he had seen Peter on 13 June 2019. Mr Basha concluded the letter with a proposal that a separate solicitor be jointly appointed to assess Peter’s capacity and that an application be made to the NSW Civil and Administrative Tribunal for orders relating to Peter’s mental capacity. HWL Ebsworth did not respond to this letter.

64. [69]

    On 21 December 2019, the defendant was served with a summons in the District Court, together with an affidavit of Mr Moloney sworn on 16 December 2019. The summons was filed on behalf of the plaintiffs in the District Court but transferred to this Court on 24 April 2020. It was stood over several times for directions. On 25 September 2020, it was listed for hearing on 9 February 2021. This date was subsequently vacated and the matter was listed for hearing on 13 May 2021 with an estimate of two days.

65. [70]

    On 15 May 2020, Mr Singer signed the “ACCEPTANCE BY ATTORNEY” portion of the 2017 Power of Attorney and proceeded to exercise the powers conferred by it by revoking various Powers of Attorney executed by Peter in favour of David. Later on 15 May 2020, Mr Basha wrote to HWL Ebsworth to inform them of what Mr Singer had done. The letter further said:

66. [71]

    On 15 May 2020, Mr Singer wrote a lengthy letter to Peter (of 14 pages, not counting the attachments, which included a copy of the 2017 Power of Attorney from Peter to Mr Singer), which he arranged to be delivered to him at home. By that time, Peter had a full-time live-in carer, who took delivery of the letter. This was Mr Singer’s first contact with Peter since he had received the 18 October 2019 Authorities. The letter included the following explanation:

67. [72]

    In the letter, Mr Singer identified several purposes for the letter, including to inform Peter that he had “activated” the 2017 Power of Attorney and his reasons for doing so. He also assured Peter that he accepted that it was Peter’s right to terminate a solicitor’s retainer and to appoint a new solicitor as long as the authority was in the proper form and he could be satisfied that Peter had signed the form voluntarily with the benefit of independent legal advice.

68. [73]

    Mr Singer set out the background to these proceedings and included the following paragraph, which he underlined, presumably for emphasis:

69. [74]

    He set out in detail the history of their relationship as solicitor and client. He also underlined the following paragraph:

70. [75]

    In relation to the companies’ documents, Mr Singer wrote, in part:

71. [76]

    It is significant that, notwithstanding Mr Singer’s apparently steadfast resolution to retain possession of certificates of title to the companies’ properties and other original documents, he indicated in this letter that he was prepared to hand them over to family members but not to HWL Ebsworth. This tends to suggest that Mr Singer wanted to remain in favour with the family so that he would continue to receive instructions from Peter’s children, in circumstances where Peter had become incapable of giving instructions himself.

72. [77]

    I also consider it to be significant that, in his communication with Peter, Mr Singer placed emphasis on Peter’s mental state and voluntariness, whereas, in his communications with HWL Ebsworth, Mr Singer principally raised formal matters. The letter of 15 May 2020 is self-serving since it portrayed Mr Singer as a solicitor whose only concern was the welfare of his client. Although he said on several occasions in the course of the letter that he appreciated that Peter had the right to change solicitors at any time, it is plain from the balance of the letter that he wanted to erect as many obstacles as possible to prevent Peter from taking that course. Mr Singer said in cross-examination that he assumed that Peter would read the letter and “hoped that he would understand it”. I do not accept this evidence. It is inconsistent with his evidence that, as at September 2019, he did not consider Peter to have the mental capacity to change solicitors or to request the return of his documents. I regard the letter of 15 May 2020 as being an attempt by Mr Singer to justify his retention of the documents which had been requested by Peter and the companies, which was prepared for the purposes of these proceedings, which had already been commenced at the time he wrote the letter.

73. [78]

    Mr Singer was cross-examined about, on the one hand, the instructions from Peter, which he had confirmed in his letter dated 17 August 2018, to the effect that Peter wanted David to have the companies’ business records in the event of his incapacity or death and, on the other, his repeated insistence (including in the letter dated 15 May 2020) that Peter had instructed him to retain possession of the companies’ documents at all costs. Mr Singer sought to resolve the inconsistency by maintaining a distinction between “business records” and transactional or title documents such as certificates of title. He contended that his preparedness, as evidenced by the letter of 17 August 2018, to allow David to have the business records of the companies did not extend to original title documents which he was to retain “in safe custody”.

74. [79]

    Also on 15 May 2020, Mr Basha wrote to Mr Moloney informing him of Mr Singer’s exercise of the 2017 Power of Attorney.

75. [80]

    On 18 May 2020, Mr Basha wrote six separate letters to Mr Moloney. Each letter was in a similar form, with a heading, “Peter Dyce” followed by the name of each of the plaintiff companies, and attached a general power of attorney given by the relevant company to Mr Singer on 18 July 2011. Mr Basha listed, in respect of each company, the documents held by Mr Singer on behalf of the company, including the articles of association, minutes of meetings and the certificates of title of properties of which the company was the registered proprietor. After the list of documents, the letter continued:

76. [81]

    Also on 18 May 2020, Mr Singer sent an email to David, Devorah and Danny to inform them “as a matter of courtesy” that he had activated Peter’s power of attorney and that the current litigation was not “consistent with the longstanding arrangements that he had discussed with “your father (and your late mother) over the years”.

77. [82]

    On 19 May 2020, Mr Singer contacted Nigel Banks and Renee Ross, of Bentleys NSW Pty Ltd, who had acted as the accountants for Peter and the companies for some years, to inform them that he had activated the 2017 Power of Attorney. He asked them for information as to any changes to Peter’s arrangements or financial affairs over the past year. He also directed them that “any matters in relation to Peter’s affairs should be referred to [him] or Peter for express approval before being actioned.” Notwithstanding several further requests sent by Mr Singer to them and a letter seeking a response sent by Mr Basha on 18 August 2020 and 14 September 2020, the recipients did not respond. Although the matter was not explored in the evidence, I infer that Mr Banks and Ms Ross did not respond because they had been informed by HWL Ebsworth in about October 2019 that Mr Singer no longer acted for the companies. Mr Singer was aware of that communication, having been informed of it by HWL Ebsworth in the letter sent to him via email on 14 November 2019 extracted above.

78. [83]

    On 21 May 2020, Mr Singer rang Peter and spoke to his carer to make sure that he had received, and read, the letter of 15 May 2020. Later that morning, he visited Peter at his home. Peter’s carer was present throughout. Mr Singer told the carer that he was a lawyer and “Peter’s attorney under a power of attorney”. On this basis, the carer allowed him to talk to Peter. A typescript of Mr Singer’s file note their conversation is annexed to Mr Singer’s affidavit affirmed on 18 September 2020. It recorded that Peter’s answers were limited to “yes” or “no”. It also recorded that the meeting lasted from 12.15pm until 1.20pm.

79. [84]

    The file note of the visit recorded that the carer said, when Mr Singer asked her, “How are things with Peter?”:

80. [85]

    Mr Singer’s file note recorded that he asked the carer to get the letter (of 15 May 2020). When she brought it to the room, Mr Singer asked Peter whether he had read it, to which he answered “no”. The carer said that she had given it to him and he “did read some parts of it but it was a big letter. I don’t know if he read the whole thing”. The file note recorded that Mr Singer asked Peter about the proceedings, including whether he knew about them, whether he knew that HWL Ebsworth acts for him, and whether he had authorised Mr Singer to hand over documents to them. To each of these questions, Peter answered “no”. Mr Singer agreed in cross-examination that Peter had said nothing to him beyond the words “yes” and “no” in the course of their meeting on 21 May 2020.

81. [86]

    When Mr Singer was cross-examined about the construction he had placed on “business records” in the letter of 17 August 2018 (as not including title documents), he said that when he had last met with Peter (which was a reference to the meeting on 21 May 2020):

82. [87]

    I do not accept this evidence. Although Mr Singer originally said that Peter “appeared to understand” what he was saying at the meeting on 21 May 2020, he subsequently admitted that he did not “believe that [Peter] fully comprehended what was happening” and that he “had no idea what [Peter’s] condition was … at the time”. I am satisfied that Mr Singer had no reasonable basis for concluding, as at 21 May 2020, that Peter had sufficient mental capacity to give him instructions. Indeed, he must have appreciated, from his own observations and what Peter’s carer had told him, that Peter’s mental state was such that he could not comprehend what Mr Singer was trying to communicate to him, either orally in the meeting or in the letter of 15 May 2020.

83. [88]

    On 22 May 2020, Mr Moloney wrote to Mr Basha and raised various issues, including Mr Singer’s visit to Peter on the previous day. He asked why Mr Singer had delivered the letter of 15 May 2020 to Peter personally rather than providing it to HWL Ebsworth, who were Peter’s solicitor on the record. Mr Moloney also attached revocations by the companies of the powers of attorney given by each of them to Mr Singer on 18 July 2011. The revocations were executed by David and Devorah (in the case of Ivan Dyce Pty Ltd, Richmond Export Pty Ltd, Loch Ness Real Estate Pty Ltd and Lidcombe Investments Pty Ltd) or David and Peter (in the case of PL Dyce Pty Ltd and Marion Lewis Pty Ltd). Mr Moloney also sought an undertaking from Mr Singer that he would “refrain from any further contact with [Peter] until otherwise advised or Court order.” As at the time of the revocations, Peter was still competent, according to Dr Chalkley.

84. [89]

    On 25 May 2020, Mr Basha responded to Mr Moloney’s email of 22 May 2020. In response to the request for an undertaking, he said:

85. [90]

    On 25 May 2020, Mr Singer exercised his 2017 Power of Attorney to direct HWL Ebsworth to do the following, in a document entitled “Direction to discontinue proceedings and cease to act”:

86. [91]

    Also on 25 May 2020, Mr Singer exercised his 2017 Power of Attorney to direct HWL Ebsworth to deliver up to him all documents relating to Peter’s affairs.

87. [92]

    At the directions hearing in this matter before the Registrar on 25 September 2020, Mr Atlan, who appeared for the plaintiffs on that day, told the Court that Peter’s claim was no longer maintained. I understand that HWL Ebsworth took this course to avoid controversy arising from Mr Singer’s exercise of power under the 2017 Power of Attorney.

88. [93]

    On 16 April 2021, approximately four weeks before the commencement of the hearing, Mr Basha wrote to HWL Ebsworth and said as follows:

89. [94]

    I regard this letter as amounting to a concession that the description of what was required to be delivered up in the authorities previously given was sufficient to cover original documents.

90. [95]

    This was the first occasion on which the defendant challenged the retainer of HWL Ebsworth to bring the proceedings. I did not understand Mr Armfield to press this submission, since he sought orders that the summons be dismissed with costs rather than that the summons be struck out and that HWL Ebsworth be ordered to pay the costs of the proceedings (as would have been appropriate had there been a successful challenge to their retainer). In any event, the submission would appear to be entirely unmeritorious since Mr Singer had been informed in significant detail of the contact which HWL Ebsworth had had with Peter, David and Devorah. The law relating to the ascertainment of corporate intention is addressed below.

91. [96]

    On 12 May 2021, David resolved, as the sole director of Marion Lewis Pty Ltd and PL Dyce Pty Ltd (Peter having become incapable of acting as a director), to appoint Devorah as a director of each of those companies. He made the resolution pursuant to s 248B(1) of the Corporations Act 2001 (Cth) which allows a company which only has one director to pass a resolution by recording it and signing the record without the need for a meeting. The section is used where a company’s constitution requires it to have two directors but only one director remains in office and the company’s constitution permits a single director to act for the purposes of filling a casual vacancy.

92. [97]

    After the appointment of Devorah as director of Marion Lewis Pty Ltd and PL Dyce Pty Ltd, David and Devorah, as directors, authorised Mr Singer to release all information in relation to the respective company to HWL Ebsworth. Mr Harris explained that this course was taken in response to the defendant’s letter of 16 April 2021 referred to above. The appointment of Devorah was valid, as was the authority addressed to Mr Singer.

Other evidence

1. [98]

   The defendant adduced evidence in the form of affidavits from various deponents to the effect that Peter’s mental state was compromised at particular dates. For example, Ian Revelman, a school friend of Danny’s, who became a friend of Peter’s, gave evidence as to Peter’s declining mental state. Mr Harris informed me that he did not object to the affidavits since he did not wish to take up time but noted that substantial parts of the affidavits were inadmissible because the evidence was either irrelevant or amounted to submissions. In his affidavit of 14 September 2020, Mr Singer senior deposed to his visit to Peter on 23 August 2019, referred to above. This evidence does not undermine Dr Chalkley’s expert opinion on which HWL Ebsworth was entitled to rely.

2. [99]

   Mr Moloney gave evidence of other conferences with Peter, which are not specifically referred to above. I accept his evidence generally. I accept that he and Mr Henley took care to meet with Peter by themselves, or in the presence of Dr Chalkley or a junior solicitor (who would take notes), in order to ensure that David or Devorah, who sometimes accompanied him to these conferences, would not influence him and that they could satisfy themselves as to his mental capacity, wishes and instructions. Whenever they were taking instructions from Peter, they took care to exclude David and Devorah. I accept Mr Moloney’s evidence as follows:

3. [100]

   As referred to above, I accept Mr Moloney’s evidence. I found him to be a competent and careful solicitor who was well aware of what was required of him as a fiduciary, who was acting for a new client who was old and was losing mental capacity. He took care to seek advice from Dr Chalkley at significant times and to ensure that good records were taken of his conferences with Peter, including by arranging for a junior solicitor to be present as a note-taker. He was present at every conference with Peter since HWL Ebsworth became involved.

4. [101]

   Mr Singer initially presented as a loyal solicitor who had a close relationship with his client and was anxious to protect his client’s interests. However in the course of his cross-examination, when Mr Harris took him through the chronology, it emerged that Mr Singer was anxious to find excuses as to why Peter could not possibly want to change his legal representative. It appeared that Mr Singer was simply unable to accept that Peter might, of his own free will, want to have a different solicitor manage his affairs and provide him with legal advice. This reluctance to accept a change in instructions led Mr Singer to cling to the hypothesis that Peter was mentally incapable or subject to the undue influence of David.

5. [102]

   Mr Singer’s use of the 2017 Power of Attorney was particularly demonstrative of his desire to retain Peter as a client. It was telling that Mr Singer denied in cross-examination that he had activated the 2017 Power of Attorney as a means of intercepting or preventing Peter from being able to provide instructions to other lawyers, and yet, when asked why he activated it, he answered that he did so because the settlement of Danny’s divorce was “urgent” and “needed to be resolved very quickly”. It is plain from the chronology set out above that Danny’s divorce settlement occurred in June 2019, but the 2017 Power of Attorney was not activated until 15 May 2020 (the payment for Danny having been made pursuant to a different power of attorney). There was, thus, no connection between Mr Singer’s activation of a different power of attorney in June 2019 and his activation of the 2017 Power of Attorney on 15 May 2020, the effect of which was to undermine the retainer of HWL Ebsworth, both to act on behalf of Peter and to press for the relief he claimed in the summons. Further, while Mr Singer was prepared to write a long and complex letter (dated 15 May 2020) to Peter explaining his reasons for doing so, he was not prepared to ask or consult Peter before doing so. Although Mr Singer denied that he activated the 2017 Power of Attorney to prevent Peter from obtaining advice from any solicitor other than Mr Singer, that was its immediate effect. I infer that this was, indeed, Mr Singer’s intention.

6. [103]

   It was also significant that Mr Singer maintained in cross-examination that he had been unable to make the assumptions referred to in s 129 of the Corporations Act when he had been asked to deliver up the companies’ documents although he had not raised this point before it was raised by Bartier Perry in their letter to HWL Ebsworth dated 16 April 2021.

7. [104]

   In cross-examination, Mr Singer identified the following assumptions in s 129 of the Corporations Act which he contended he could not make:

   1. (1)

      the assumption that anyone who appears (from ASIC records) to be a director has been duly appointed and has authority to exercise the powers customarily exercised by a director of a similar company (s 129(2));

   2. (2)

      the assumption that anyone who is held out by the company to be an officer or agent of the company has been duly appointed and has authority to exercise the powers customarily exercised by an officer of a similar company (s 129(3)); and

   3. (3)

      the assumption that the officers and agents of the company properly perform their duties to the company (s 129(4)).

8. [105]

   He said that he could not make the assumption that the companies had duly authorised the request for documents because he knew that:

9. [106]

   Mr Singer said that he could not make the assumption that either David or Devorah had the authority to exercise the powers of a director of the companies of which they had been appointed directors because Peter was the “controlling shareholder of the companies” and Mr Singer had never taken instructions from either David or Devorah in their capacity as directors so he questioned their authority. It is, in this context, noteworthy, that Mr Singer was not prepared to act on Peter’s handwritten note (provided to him with the 18 October 2019 Authorities) to the effect that Peter wished to “sack” him. Nonetheless, Mr Singer accepted that once Peter lost the capacity to act as a director, he was no longer a director of the companies and that David and Devorah were the only directors of the companies.

10. [107]

    Further, Mr Singer said that he could not make the assumption that David or Devorah were properly exercising their duties to the companies because he had “standing instructions not to release any documents that were held by [the defendant]” and he considered their request that he do so to be “improper”.

11. [108]

    I regard the evidence Mr Singer gave about the assumptions in the Corporations Act as being disingenuous and motivated by his considerable financial interest in retaining the companies as his clients. The effect of his evidence was that only Peter could give instructions on behalf of the companies, notwithstanding that David and Devorah, too, were directors. As Peter was incapable of giving those instructions, the companies would be held to ransom by Mr Singer. It would appear that he hoped that this would lead to HWL Ebsworth being removed as the companies’ solicitor and his reinstatement in that role. I accept Mr Harris’s submission that the letter of 15 May 2020 was an attempt to provide a justification for the defendant’s continued refusal to provide the documents.

12. [109]

    Mr Armfield submitted that it was necessary for me to be satisfied, by reference to their articles of association, that the companies could authorise the defendant to deliver up their documents. The articles of association of the companies were tendered as evidence in the hearing.

13. [110]

    Each of the companies adopted the articles of association in Table A to a schedule to the relevant Companies Act. The evidence revealed the following:

14. [111]

    The provisions of Table A articles differ between the Companies Act 1936 (NSW) (the 1936 Act) and the Companies Act 1961 (NSW) (the 1961 Act). I do not regard the differences as presently material.

15. [112]

    Article 72(e) of Table A in Sch 2 to the 1936 Act relevantly provides that the office of director shall be vacated if the director:

16. [113]

    The corresponding provision in the 1961 Act, art 72(d) provides that the office of director shall become vacant if the director:

17. [114]

    Article 79 in Table A to the fourth schedule in the 1961 Act provides that the directors may “meet together for the despatch of business adjourn and otherwise regulate their meetings as they think fit.” The corresponding provision in Table A to the 1936 Act is to the same effect. Where the number of directors does not exceed three, a quorum is two directors: art 82 of the 1936 Act. The corresponding provision in the 1961 Act is art 83, which provides for a quorum of two unless another quorum is fixed by the directors.

18. [115]

    Article 83 of Table A in the 1936 Act is to the same effect as art 84 in Table A in the 1961 Act, namely that if there is a vacancy, the continuing directors may act, but if their number is reduced below a quorum, they may act only for the purpose of increasing the number of directors or summoning a general meeting of the company.

19. [116]

    In the course of the hearing, Mr Harris handed up a table (which I marked MFI#2) which set out the material parts of the articles of association of each of the companies relating to the incapacity of a director, the minimum number of directors set by the constitution of the company and the identity of the person or persons with power to appoint a new director. Mr Armfield sought time to consider the document and provide a response. To that end, I made directions as to the provision of an agreed document to the Court, or, if agreement could not be reached, a document which highlighted the disagreements. I understood MFI#2 to have been provided as an aide-memoire to accompany the tender of the full set of articles of association of the companies.

20. [117]

    Mr Armfield took the opportunity I had afforded (by making directions requiring him to provide a response) to make substantial further submissions, of five pages in length, about the validity or otherwise of the acts of the companies. The matters raised by Mr Armfield in response had not been raised in the course of the hearing. Because the proceedings were commenced by summons (the plaintiffs having no prescience as to the substantial disputes as to fact that would be raised by the defendants), none of these matters was pleaded.

21. [118]

    It is not necessary to resolve the issues raised by Mr Armfield because, for the reasons given below, I am satisfied that the companies authorised HWL Ebsworth to seek the return of their documents from Mr Singer. They acted through persons who comprised, at the relevant time, all of the directors of the companies, who together held all the shares in the companies, with the single exception of Danny, who held an 18.6% share in one of the companies. In these circumstances, there was undoubted authority. Whatever questions arose as to Peter’s capacity after late 2019 when HWL Ebsworth was authorised by the companies, he had the requisite capacity when the request was made.

22. [119]

    Any irregularities in compliance with the articles of association of the companies were, in this context, immaterial in that they could not bear on the resolution of the real issues in dispute in the proceedings. Accordingly, it is not necessary to decide whether Mr Armfield would otherwise be entitled to raise these matters, having regard to the late stage at which he raised them, which was after I had reserved my decision.

Consideration

1. [120]

   The companies’ case, as articulated by Mr Harris, is based on the following four propositions:

   1. (1)

      the companies served on the defendant the 18 October 2019 Authorities, signed by all of their directors, each of which was mentally capable of doing so at the time, requiring that their documents be returned;

   2. (2)

      if the 18 October 2019 Authorities, which required “information” were not sufficient, the subsequent correspondence in November 2019 which required “all material” was sufficient to require the defendant to deliver up the documents;

   3. (3)

      notwithstanding the several requests made by the companies to the defendant, through HWL Ebsworth and by written authorities, the defendant has failed to return the documents to the companies; and

   4. (4)

      the companies are entitled to an order for return of the documents pursuant to s 472(1)(b) of the Uniform Law, together with an order for costs.

2. [121]

   Mr Armfield raised a number of objections to the relief sought in the summons, some of which were raised for the first time in final address. The objections included the following:

   1. (1)

      Mr Singer was aware of conflicts within the family, including between Peter and David;

   2. (2)

      Mr Singer was aware of Peter’s longstanding disinclination (as confirmed in his instructions to Mr Singer) to allow original documents such as title deeds to leave Mr Singer’s possession;

   3. (3)

      Peter no longer had the capacity to revoke his long-standing instructions to Mr Singer to retain the original certificates of title of the companies’ properties in Mr Singer’s possession;

   4. (4)

      Peter had asked for his will to be returned, in circumstances where he might be susceptible to David’s influence, due to Peter’s age and infirmity;

   5. (5)

      the authorities given by the companies were not in proper form and no written resolution was ever provided to authorise the companies’ requests for the documents or the commencement of proceedings;

   6. (6)

      the 18 October 2019 Authorities sought “information” which did not include documents;

   7. (7)

      the correspondence of November 2019 rose no higher than the 18 October 2019 Authorities;

   8. (8)

      in so far as Mr Singer was aware that David was to have possession of the companies’ business records in the event of Peter’s incapacity, this did not extend to certificates of title which were to be kept at all times in Mr Singer’s possession;

   9. (9)

      Mr Singer was not entitled to rely on the assumptions in s 129 of the Corporations Act because he had only ever received instructions from the companies through Peter and not from David or Devorah, and he knew the assumptions to be incorrect; and

   10. (10)

       Mr Singer was entitled to retain possession of the companies’ documents unless and until he was provided with a copy of a written resolution of each of the companies recording that the companies resolved to authorise him to deliver up their documents to HWL Ebsworth.

3. [122]

   The starting point is that a solicitor is bound to act in accordance with the instructions of his or her client. Mr Singer’s clients were, relevantly, the companies for whom he had previously acted. He was bound to act in accordance with their directions. Because a company can act only through human agents, the company’s authorisation depended on the actions of, relevantly, its directors, acting collectively as the board.

4. [123]

   As referred to above, one of the defendant’s principal objections (although it was first raised on 16 April 2021, approximately 18 months after the proceedings had been commenced) was that none of the companies had documented a formal resolution either to request the return of its documents or to commence proceedings. Mr Armfield relied on La Compagnie de Mayville v Whitley [1896] 1 Ch 788 (La Compagnie) in which S, had purported to commence proceedings in the name of a company of which he was a director, although no board resolution had been passed permitting him to do so and he had not put the proposed resolution to the board. S had, however, obtained a memorandum signed by 5 out of the 7 signatories of the company’s memorandum of association. Lindley LJ held that, as S had used the name of the company without the authority of a resolution of the board or of the shareholders in a duly convened general meeting, the company’s name should be struck from the writ.

5. [124]

   I do not regard the principle in La Compagnie as bearing on the present issue. While it would appear to be common ground that there was no formal notice of a directors’ meeting and no documented resolution, the evidence established that on 18 October 2019, Peter, David and Devorah were all present at Dr Chalkley’s rooms for the purpose of authorising Mr Singer, on behalf of the companies, to deliver up the companies’ “information” and provide it to HWL Ebsworth, who was to act on behalf of the companies from then on. This gathering was, in my view, sufficient to constitute a “meeting” for the purposes of the articles of association of the company. The companies’ request for their documents was reiterated subsequently in the letter from HWL Ebsworth to Mr Singer, which was signed by David and Devorah, as directors of the companies.

6. [125]

   Decisions of this Court have emphasised the importance of not adopting too formal an approach, particularly in so far as private companies are concerned. For example, in MYT Engineering Pty Ltd v Mulcon Pty Ltd (1997) 140 FLR 247, the Court of Appeal was prepared to accept (although it was not determinative of the matter) that a telephone conversation between directors was sufficient to constitute a meeting. Powell JA, at 266, listed the ways in which latitude is given to companies in being found to have made resolutions notwithstanding that no formal meeting has taken place and no resolution has been documented, as follows:

7. [126]

   The authority cited for the third proposition was HL Bolton (Engineering) Co. Ltd v TJ Graham & Sons [1957] 1 QB 159 in which Denning LJ found that the intention of a company to occupy a building was clear from its acts. Thus, the fact that there had been no board meeting or resolution to that effect did not mean that the company’s intention had not been sufficiently established. In the present case the intention of the directors of the companies was clear: they wanted to change their solicitors from Mr Singer to HWL Ebsworth and they wanted the companies’ documents, including the certificates of title which were in Mr Singer’s possession, to be delivered up to HWL Ebsworth. Although the word “information” usually means knowledge or what one is told or can find out, the context in which the word was used in the 18 October 2019 Authorities (particularly having regard to the substantial correspondence which had preceded it) indicated that what was meant was something tangible, including documents. The wording of the document was infelicitous (in so far as the word “information” was used), but its intention was plain from the surrounding circumstances. Mr Singer chose not to understand its intended meaning because he did not want to lose the companies’ business. I reject Mr Armfield’s submission that the companies were required to establish that they had passed a resolution in a directors’ meeting to authorise the commencement of the proceedings.

8. [127]

   I accept Mr Harris’s submission that, whatever be the position subsequently, at the time he signed the 18 October 2019 Authorities, Peter had the requisite mental capacity to join in the request on behalf of the companies that Mr Singer return their documents and to instruct new solicitors. The report of Dr Chalkley of 3 September 2019 and his consultations with Peter on 14 October 2019 and on the morning of 18 October 2019 before Peter signed the authorities on behalf of all of the companies are sufficient to establish this. Further, I accept the evidence of Mr Moloney that he was acutely aware of the potential for conflict and issues relating to Peter’s capacity before his firm was retained to act on Peter’s behalf and that he took reasonable steps to ascertain that Peter had the capacity to decide to change solicitors and execute the 18 October 2019 Authorities.

9. [128]

   If there was any ambiguity in the 18 October 2019 Authorities (which I doubt), the correspondence from HWL Ebsworth in November 2019, which was endorsed by the signatures of David and Devorah, was sufficient to remove the ambiguity and communicate to Mr Singer that he was required to deliver up the companies’ documents.

10. [129]

    I reject Mr Armfield’s submission that the present case was analogous to Northside Developments Proprietary Limited v Registrar-General (1990) 170 CLR 146; [1990] HCA 32, in which it was held that a mortgagee was put on inquiry by the fact that a mortgage apparently granted by a company (Northside Developments Proprietary Limited) was given to secure an advance to a third party without any indication that the mortgage or advance was for the purposes of the company’s business. The company’s seal had been fraudulently affixed to the mortgage, which had not been authorised by the company. The question was whether the company was entitled to compensation from the Registrar-General under s 127 of the Real Property Act 1900 (NSW) for the loss of its estate on the ground that it did not execute the mortgage. The High Court allowed the company’s appeal and reinstated the orders of the trial judge, which ordered the Registrar-General to pay compensation to the company.

11. [130]

    In that case, the company obtained no benefit from the mortgage, which did not appear to be associated with its business. In the present case, Peter, a wealthy man, wanted, at the age of 90, to change his solicitors and make arrangements for a new will. The new solicitors, HWL Ebsworth, who initially acted for Peter, were subsequently also retained for the companies (of which Peter was the controlling shareholder) gave every indication that they were aware of, and fulfilled, the fiduciary duties that they owed to their clients, and that they had ascertained Peter’s mental capacity to give them the instructions which he was giving to them. They had also obtained clear and unequivocal instructions from Peter that he wanted to “sack” (Peter’s word) Mr Singer and retain them instead.

12. [131]

    Mr Armfield identified the relevant “suspicion” as being the prospect that whoever had the certificates of title could sell the properties. So much is true, but the authorities Mr Singer received from the companies required the “information” or “material” to be provided to HWL Ebsworth, a firm of solicitors, who owed fiduciary duties to their clients, who were, at that time, Peter and the companies. Thus, whatever threat Mr Singer considered that David posed, was no longer properly a matter of concern to him, since he would, had he complied with the authorities, have delivered the documents to HWL Ebsworth. There was nothing suspicious about these circumstances and nothing to indicate that Mr Singer was entitled to refuse to comply with the authorities given to him. Although he purported to be motivated by concern for Peter, he was, as I have found, motivated by self-interest as Peter and the companies had obviously been valuable clients of Mr Singer senior, Mr Singer and the defendant in the past.

13. [132]

    Nor was there anything “suspicious” about David and Devorah giving instructions to HWL Ebsworth on behalf of the companies or signing the authorities. That they had not previously instructed Mr Singer on behalf of the companies can be explained by the fact that, previously, Peter, who had run the companies himself, had been able to do so. When he became unable to do so, there was nothing at all surprising about the fact that two of his three children who had been directors of the companies since at least 1993, gave instructions and directions on behalf of the companies. One might ask rhetorically: who else apart from David and Devorah could constitute the human agents of the companies? David and Devorah were the only directors of the companies at the time the proceedings were commenced, since, by that time, Peter had lost the mental capacity to give instructions.

14. [133]

    The commencement and continuation of the proceedings was sufficient to indicate that the companies had authorised HWL Ebsworth to commence and continue them. Further, there was nothing to indicate that HWL Ebsworth was doing anything other than fulfilling their duties as solicitors and abiding by their clients’ instructions.

15. [134]

    Although I am satisfied that the defendant was obliged, by the 18 October 2019 Authorities, to deliver up the companies’ documents in Mr Singer’s possession, all possible doubt or objection had been comprehensively removed in respect of the fourth to seventh plaintiffs by 14 November 2019 when he received the endorsement signed by David and Devorah. As they were two out of the three directors, they constituted a quorum and could act on behalf of the companies, in accordance with the articles of association referred to above. In respect of the second and third plaintiffs, David, as the sole competent director, was entitled to appoint a replacement (under art 83 of the 1936 Act and art 84 of the 1961 Act) to fill the vacancy left by Peter when he became incapable. He ultimately did so on 21 May 2021. Mr Singer knew, at all material times, that David could have done so at any time after Peter lost mental capacity to act as a director. It is telling that, even when the defendant was given the documents which showed that David had appointed Devorah as a director of the second and third plaintiffs, the defendant continued to object to delivering up the documents, absent a court order.

Costs

1. [135]

   The parties asked me to make a default costs order that costs follow the event, but to make provision in the orders for a different order to be made if any party makes an application for a different order. The general rule is that costs ought follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1). For the reasons given above, the companies established that, prior to the commencement of the proceedings, they were entitled to the relief claimed. Accordingly, the default order will be that the defendant pay the companies’ costs of the proceedings.

2. [136]

   By reason of Mr Singer’s exercise of power under the 2017 Power of Attorney, Peter no longer pressed his claim for relief. Had such claim been pressed, Peter would have been entitled to the relief sought since he requested return of his documents at a time when he had capacity to do so. In these circumstances, I consider that, subject to an application for a different order being made, the defendant ought pay the first plaintiff’s costs of the proceedings up to an including 25 September 2020, being the date on which the defendant was notified that Peter’s claim would not be pressed.

Orders

1. [137]

   For the reasons given above, I make the following orders:

   1. (1)

      Pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) order that the defendant deliver up to the second to seventh plaintiffs all of the plaintiffs’ documents held by the defendant relating to:

   2. (2)

      Unless a party applies in writing to my Associate for a different order within seven days hereof, order the defendant to pay the second to seventh plaintiffs’ costs of the proceedings.

   3. (3)

      Note that the first plaintiff no longer presses his claim for relief.

   4. (4)

      Grant leave to the first plaintiff to discontinue the proceedings but waive compliance with the requirement that the first plaintiff file a notice of discontinuance.

   5. (5)

      Unless a party applies in writing to my Associate for a different order within seven days hereof, order the defendant to pay the first plaintiff’s costs of the proceedings up to and including 25 September 2020.