Anderson v Hassett

[2006] NSWSC 1058

CITATION:	Anderson v Hassett [2006] NSWSC 1058
HEARING DATE(S):	03/10/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	10/03/2006
DECISION:	Application dismissed.
CATCHWORDS:	PROCEDURE- Perfection of Judgments - Orders for the taking of an account - Whether failure entitles plaintiff to an order that copies of documents produced on subpoena be provided to the Law Society of NSW and the Legal Services Commissioner in the absence of any proceedings before either body - Whether in the absence of the taking of the account the remaining asset in the estate should be transfered to the beneficiaries - Whether an order should be made that the defendant comply with earlier orders of the Court
LEGISLATION CITED:	Legal Profession Act 2004
PARTIES:	Thomas James Anderson - Plaintiff James Trevor Hassett - Defendant
FILE NUMBER(S):	SC 1331/06
COUNSEL:	Mr G Rich - Plaintiff Mr M Lawson - Defendant
SOLICITORS:	Malcolm McDonald and Co - Plaintiff Hassetts Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 3 OCTOBER 2006

1331/06 THOMAS JAMES ANDERSON v JAMES TREVOR HASSETT

EX TEMPORE JUDGMENT

1 There is before the court a notice of motion seeking various orders. Some of the orders sought have their reference in the orders made by Windeyer J on 21 June 2006. His Honour ordered that an account be taken of all money received and disbursed by the defendant and any other person on his behalf in respect of property comprised in the estate of the late Thomas Walter Malcolm Anderson, deceased, and the dealing and transactions of the defendant therewith. His Honour ordered that the account be taken by the Registrar or Senior Deputy Registrar of the court in Probate or Equity.

2 Orders were made for the filing of an account, the production of invoices, receipts, bank statements, passbooks and mortgage documents, and liberty to apply was granted.

3 The first order sought in the notice of motion is for leave to the plaintiff to provide copies of records produced under subpoena by Community First Credit Union Ltd and copies of the pleadings in these proceedings to the Law Society of New South Wales and the Legal Services Commissioner.

4 There are no proceedings against the defendant before either the Law Society or the Legal Services Commissioner.

5 It was submitted that it was a matter of public policy that the defendant, being a solicitor, the order should be made to enable any complaint made to the Law Society or the Commissioner to be accompanied by such documents.

6 I am not prepared to release the plaintiff from the implied undertaking that the documents be used solely for the purpose of these proceedings in advance of any complaint laid before the Law Society or the Legal Services Commissioner.

7 There are provisions within the Legal Profession Act 2004 that allow for the obtaining of information, if such a complaint be made. The application, in my view, is premature.

8 The second order sought the delivery to the Registrar of the certificate of title of the property, the only remaining asset of the estate. That certificate has been lodged.

9 The third order was that the Registrar be authorised to execute, on behalf of the plaintiff, all such documents and transfers as should be reasonably required to transfer the interests of the late Thomas Walter Anderson in the property to the plaintiff and to the administrator of the estate of the late Leone Veronica Anderson to whom the property was devised equally.

10 The problem about making that order in advance of the Registrar taking the account is that it deprives the defendant of the source of reimbursement of any net amount that might be found, on the taking of the account, to be due to him. In those circumstances, I do not propose to make the order sought.

11 The fourth order sought is that the defendant comply with the orders made by Windeyer J. That is not a form of order that the Court should make. The orders of Windeyer J, unless and until vacated or varied, stand as the orders of the court. The appropriate course, if there has been a failure to comply with his Honour's orders, is to take some other course, such as a contempt of court proceeding. I decline to make the order sought in par 4.

12 The fifth order sought is that the defendant account for money advanced to him by the Community First Credit Union Ltd secured over the property. That is already comprised in the orders made by Windeyer J.

13 In my view, the relief sought in the notice of motion is misconceived. The appropriate course is to ensure that the account is taken as expeditiously as possible in accordance with the orders made by Windeyer J. I therefore dismiss the notice of motion.

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