Angius v Salier (No 3)

[2019] NSWSC 1648

Supreme Court

New South Wales

Medium Neutral Citation:	Angius v Salier (No 3) [2019] NSWSC 1648
Hearing dates:	21 November 2019
Date of orders:	21 November 2019
Decision date:	21 November 2019
Jurisdiction:	Equity
Before:	Parker J
Decision:	See [14].
Catchwords:	CIVIL PROCEDURE — Appearance — Withdrawal of appearance — Leave of court – application one week prior to allocated hearing date – client neglected to advance disbursements for counsel’s fees – client likely to be self-represented if application succeeds.
Legislation Cited:	Uniform Civil Procedures Rules (NSW), r 7.29
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	John Angius (Plaintiff) Gordon Albert Salier (First Defendant) Angius Hotel Investments Pty Ltd (Second Defendant) Togumi Pty Ltd (Third Defendant) J&L Angius Pty Ltd (Fourth Defendant) Tararba Pty Ltd (Fifth Defendant) Angius Investments Pty Ltd (Sixth Defendant) Robert Angius (Seventh Defendant)
Representation:	Counsel: C Birtles (First Defendant) H Wrench (Second to Sixth Defendants) V Culkoff (Seventh Defendant) Solicitors: Gregory Falk & Associates (Plaintiff) Teece Hodgson & Ward (First Defendant) Carneys Lawyers (Second to Sixth Defendants) PV Lawyers (Seventh Defendant)
File Number(s):	2016/142494
Publication restriction:	Nil

Judgment – EX TEMPORE

Revised and reissued 28 November 2019

1. This is an application by the solicitor for the plaintiff for leave to withdraw. The solicitor, Mr Falk, requires leave of the Court because the trial of the proceedings have been fixed to commence next week on 28 November 2019.

2. The evidence in support of the application shows that under the terms of Mr Falk’s costs agreement, his client, Mr Angius, agreed to put in funds when required for the purpose of the conduct of the litigation. It was a further term of the costs agreement that Mr Falk might terminate the agreement if his requests for funding were not acceded to. Mr Falk’s affidavit shows that he made numerous requests to Mr Angius for funding beginning on 23 October. The evidence shows that on 8 November, that is the Friday before last, Mr Angius promised to provide $30,000 by way of counsel’s fees by 12 November, but he has not done so. On 15 November, that is last Friday, Mr Falk attended Mr Angius’ home and handed him a letter purporting to terminate the retainer.

3. On Monday, Mr Falk spoke to Mr Angius and Mr Angius promised to pay him $15,000, but there is no evidence of this payment having been made. The present application was notified to the Court on Monday and I have dealt with it on an urgent basis in view of the fact that the hearing is to commence next week. I was informed from the bar table that Mr Angius has been notified of the application, but he has not appeared at today’s hearing.

4. To be fair to Mr Angius, the Court did not advise him of the hearing date, not having been told of his address for that purpose and there is no evidence that he was told that the hearing would be taking place today.

5. The proceedings have a long and unfortunate procedural history which includes multiple unsuccessful attempts by Mr Angius to amend his pleadings.

6. The trial was fixed some months ago and all of the defendants have made it clear that they will vigorously oppose any attempt to adjourn the proceedings. On the evidence before me there would be no apparent justification for any such adjournment.

7. The application puts the Court in a difficult position. If Mr Falk withdraws, an application may be made for an adjournment, but the approval of Mr Falk’s withdrawal in no way requires the Court to grant any such adjournment, and for reasons which I have adverted to, on the material currently available, it seems that no adjournment would be granted. The matter would then continue and Mr Angius would either have to obtain legal representation or represent himself.

8. I was informed from the bar table that at an earlier stage in these proceedings Mr Angius did represent himself in a hearing; however, I have also been informed that the proceedings are complex and the time which was allocated to them no doubt reflected the then assumption that Mr Angius would be legally represented.

9. If the Court were to accede to this application then there is a real risk, if not a likelihood, of Mr Angius appearing himself and the hearing not being completed within the time that has been allocated. That would be something that would be contrary to the interests not only of the defendants, who have been waiting a long time to have the proceedings determined, but also other litigants in the Court whose hearings might be displaced because of the need to accommodate a longer hearing for this case.

10. On the evidence Mr Falk has been placed in an extremely difficult position by his client, Mr Angius. But the Court relies upon practitioners to assist it in discharging its functions and the requirement for leave if a solicitor is to withdraw within 28 days of the trial is well-known.

11. It is easy to understand how Mr Falk could have been led on by a belief induced by Mr Angius that moneys would be made available and Mr Falk would be able to proceed with the benefit of funding. But difficult as the position is for Mr Falk I think I must give priority to the interests of litigants in the Court, and to the Court’s own entitlement to assistance from its officers in cases where they accept instructions to appear at trials.

12. In these circumstances I decline to grant leave to Mr Falk to withdraw from the proceedings.

13. I will give liberty to apply, however, for this reason: Mr Falk has been placed in a very difficult position by Mr Angius, and Mr Angius has apparently indicated that he would obtain or was looking to obtain further legal representation. If representation can be obtained for Mr Angius then the Court will let Mr Falk withdraw and accordingly he will have liberty to apply on short notice to facilitate that should any order be required from the Court.

14. The orders of the Court are:

1.   I refuse the application by Mr Falk for leave to withdraw under the Uniform Civil Procedures Rules (NSW), r 7.29.

2.   I grant liberty to Mr Falk to re-apply on 24 hours’ notice for leave to withdraw in the event alternative legal representation can be arranged for Mr Angius.

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Decision last updated: 28 November 2019