Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218

Facts: P (MWP, law firm incorporated in the British Virgin Island controlled by Michael Wilson, an English solicitor who practices law in Kazakhstan) hired D (Emmott) as one of its directors, on agreement that D would get 33% of the shares. D’s contract was governed by NSW law. After a few years, D left P to establish his own law firm. P brought a claim (among others) against D in NSWSC, arguing D had fiduciary duties to pay, because D and AU solicitors formed a partnership to compete with P.

Issue: What is a “real and substantial connection” with Australia?

Held: There was no substantial connection’ no partnership assets in AU; all the events and all the persons occurred outside AU (i.e. no breach of DoC in AU).

Factors court may consider to establish a “real and substantial connection”:

• Breach of duty in AU

• Whether AU law applicable to breach

• Whether companies resided in AU

• Whether conduct occurred in AU or overseas

• Whether parties are AU residents

“None of the conduct which is said to involve a breach of duty occurred in Australia.... The claim concerns foreign companies that do not trade in Australia. It concerns conduct that occurred outside of Australia by a person who is resident outside of Australia. The most that could be said is that Mr Emmott is an Australian citizen. However, citizenship is not normally regarded as a connecting factor under the common law”.