Atlantic 3-Financial (Aust) P/L v Marler - [2003] QCA 529

SUPREME COURT OF QUEENSLAND

CITATION:

Atlantic 3-Financial (Aust) P/L & Anor v Marler & Anor
[2003] QCA 529

PARTIES:

ATLANTIC 3-FINANCIAL (AUST) PTY LTD
ACN 056 262 723
(applicant/first respondent)
ATLANTIC 3 FUNDS MANAGEMENT LIMITED
ACN 092 110 097
(applicant/second respondent)
v
WARWICK LESLIE MARLER and
RICHARD LLEWELLYN DARVALL
trading under the firm name or style of
C B DARVALL & DARVALL
(respondents/appellants)

FILE NO/S:

Appeal No 3581 of 2003
SC No 1627 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from interlocutory decision

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2003

JUDGES:

Davies and Jerrard JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Set aside orders made 21 March 2003
2.   In lieu thereof, order that the application be dismissed
3.   Respondents to pay appellants' costs of the appeal to      be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE - GENERALLY - where the learned primary judge ordered the delivery up of all the respondent practitioner's documents - whether the learned primary judge erred in making this determination

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING - WHEN ADMISSIBLE - where the hearing had been conducted on the basis that both applicants were solvent - whether new evidence about the first respondent's financial status should be received

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - QUEENSLAND - where Queensland Law Society Rules 1987 r 84 made pursuant to Queensland Law Society Act 1952 - where r 84(1) provides in respect of requests by a client for the practitioner to render a bill of costs "covering all work for that client" - where such request made by the respondent - whether the phrase "all work for that client" should be construed as being limited to work for which the practitioner has not already entered a bill of costs or has not been paid

PROFESSIONS AND TRADES - LAWYERS - LIENS - POSSESSORY LIEN - where Queensland Law Society Rules 1987 r 84(2) allows for the extinguishment of a practitioner's lien if he or she fails in his duty to render costs - whether this rule contemplates the solicitor's general lien or a lien limited to a particular file, document or sum of money

Queensland Law Society Act 1952, s 5A
Queensland Law Society Rules 1987, r 84

Re Muller [1993] QdR 405, considered
Queensland Mushrooms Pty Ltd v Hawthorn Cuppaidge &     Badgery [2002] QSC 76; SC No 1984 of 2002, 7 March 2002, considered

COUNSEL:

P J Dunning for the appellants
P J Davis for the respondents

SOLICITORS:

CB Darvall & Darvall for the appellants
Lynch & Company for the respondents

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: [2003] QCA 529
Decision Date: 28 November 2003

CaseChat Overview and Summary

In the case of Atlantic 3-Financial (Aust) P/L v Marler, the dispute involved the appellants seeking the delivery of certain documents held by the respondents, who were legal practitioners. The case was heard in the Supreme Court of Queensland. The primary judge had ordered the respondents to deliver all their documents, but the appellants appealed, arguing that this order was based on the wrong principle and that the court below had made an error in its discretion.

The central legal issues before the court were whether the primary judge had indeed erred in ordering the delivery of all documents and whether new evidence regarding the financial status of the respondents should be admitted, as it was not available at the time of the hearing. The court also had to interpret the phrase "all work for that client" in the context of Queensland Law Society Rules 1987, and determine whether the rule allowed for the extinguishment of a practitioner's lien if the practitioner failed in their duty to render costs.

The court found that the primary judge had erred in ordering the delivery of all documents, as this was based on a wrong principle. The court also held that the new evidence about the respondents' financial status should not be received because the hearing had been conducted under the assumption that both applicants were solvent. Furthermore, the court interpreted the phrase "all work for that client" as encompassing all work done for the client, not limited to work for which the practitioner had not already entered a bill of costs or had not been paid. Lastly, the court concluded that the rule in question contemplated the extinguishment of a general lien rather than a lien limited to a particular file, document, or sum of money.

In light of these findings, the court set aside the orders made on 21 March 2003 and, in lieu thereof, dismissed the application. The respondents were ordered to pay the appellants' costs of the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1. Set aside orders made 21 March 2003

2. In lieu thereof, order that the application be dismissed

3. Respondents to pay appellants' costs of the appeal to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Atlantic 3-Financial (Aust) P/L & Anor v Marler & Anor [2003] QCA 529
PARTIES:	ATLANTIC 3-FINANCIAL (AUST) PTY LTD ACN 056 262 723 (applicant/first respondent) ATLANTIC 3 FUNDS MANAGEMENT LIMITED ACN 092 110 097 (applicant/second respondent) v WARWICK LESLIE MARLER and RICHARD LLEWELLYN DARVALL trading under the firm name or style of C B DARVALL & DARVALL (respondents/appellants)
FILE NO/S:	Appeal No 3581 of 2003 SC No 1627 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from interlocutory decision
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2003
JUDGES:	Davies and Jerrard JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Set aside orders made 21 March 2003 2. In lieu thereof, order that the application be dismissed 3. Respondents to pay appellants' costs of the appeal to be assessed on the standard basis
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE - GENERALLY - where the learned primary judge ordered the delivery up of all the respondent practitioner's documents - whether the learned primary judge erred in making this determination APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING - WHEN ADMISSIBLE - where the hearing had been conducted on the basis that both applicants were solvent - whether new evidence about the first respondent's financial status should be received STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - QUEENSLAND - where Queensland Law Society Rules 1987 r 84 made pursuant to Queensland Law Society Act 1952 - where r 84(1) provides in respect of requests by a client for the practitioner to render a bill of costs "covering all work for that client" - where such request made by the respondent - whether the phrase "all work for that client" should be construed as being limited to work for which the practitioner has not already entered a bill of costs or has not been paid PROFESSIONS AND TRADES - LAWYERS - LIENS - POSSESSORY LIEN - where Queensland Law Society Rules 1987 r 84(2) allows for the extinguishment of a practitioner's lien if he or she fails in his duty to render costs - whether this rule contemplates the solicitor's general lien or a lien limited to a particular file, document or sum of money Queensland Law Society Act 1952, s 5A Queensland Law Society Rules 1987, r 84 Re Muller [1993] QdR 405, considered Queensland Mushrooms Pty Ltd v Hawthorn Cuppaidge & Badgery [2002] QSC 76; SC No 1984 of 2002, 7 March 2002, considered
COUNSEL:	P J Dunning for the appellants P J Davis for the respondents
SOLICITORS:	CB Darvall & Darvall for the appellants Lynch & Company for the respondents