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

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.
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.
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.
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.
The…

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.

Continue reading Angius v Salier (No 3)

Details

AGLC: Angius v Salier (No 3) [2019] NSWSC 1648
Case: [2019] NSWSC 1648
Decision Date: 21 November 2019

CaseChat Overview and Summary

Angius v Salier (No 3) involved a legal dispute between Angius, the plaintiff, and Salier, the defendant, heard by the court. The central issue pertained to the withdrawal of an appearance by the plaintiff's counsel due to non-payment of fees. The matter was scheduled for hearing, and the application for withdrawal was made a week before the allocated date. A significant factor in the decision was the client's neglect to advance the necessary disbursements for counsel's fees, which led to the possibility of the client being self-represented if the application for withdrawal was granted.

The legal issues before the court involved the appropriate circumstances under which a party's counsel may withdraw from a case, particularly when the withdrawal is requested close to the hearing date. The court had to consider the client's potential self-representation, the client's responsibility in ensuring payment of fees, and the impact on the judicial process. The court was tasked with balancing the rights of the client to be represented by counsel against the financial obligations that underpin the legal profession.

The court ruled that the withdrawal of appearance would be permitted. It noted that the client had neglected to provide the necessary funds for the counsel's fees, which was a breach of the retainer agreement. The court emphasised that while the application was made close to the hearing date, the client's failure to fulfill financial obligations justified the withdrawal. Additionally, the court acknowledged the likelihood of the client being self-represented if the application was not allowed, which would not unduly prejudice the defendant. Consequently, the court granted the application for withdrawal, allowing the counsel to cease representing the plaintiff.

The court's final orders included the withdrawal of the plaintiff's counsel from the case and the direction that the plaintiff proceed as a self-represented party. The hearing was to proceed as scheduled, with the plaintiff bearing all further costs associated with the litigation.

Orders