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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 1058
Decision Date: 03/10/2006

CaseChat Overview and Summary

The case of Anderson v Hassett before the Supreme Court of New South Wales involved a dispute over the proper execution of a judgment and the subsequent distribution of assets. The plaintiff sought an order that the defendant provide copies of documents to the Law Society of New South Wales and the Legal Services Commissioner. The plaintiff argued that the defendant's failure to take an account as ordered entitled them to this relief, despite the absence of any proceedings before either of the mentioned bodies. Additionally, the plaintiff sought an order that the remaining asset in the estate be transferred to the beneficiaries, given that the account had not been taken. Lastly, the plaintiff requested that the defendant comply with earlier orders of the court.

The court had to determine whether the plaintiff's failure to take an account entitled them to an order for the provision of documents to the professional bodies, even in the absence of proceedings before them. The court also needed to decide whether, in the absence of the taking of the account, the remaining asset in the estate should be transferred to the beneficiaries. Furthermore, the court was required to assess whether an order should be made for the defendant to comply with earlier orders of the court.

The court held that the plaintiff's entitlement to an order for the provision of documents to the professional bodies was contingent upon the existence of proceedings before them. In the absence of such proceedings, the plaintiff was not entitled to the requested order. Regarding the transfer of the remaining asset, the court found that, given the failure to take an account, the asset should be transferred to the beneficiaries. Finally, the court made an order that the defendant comply with the earlier orders of the court, thereby affirming the importance of adhering to judicial directives.

Orders