Baronglow Pty Ltd v Willing & Thomas

[2004] SASC 245

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

BARONGLOW PTY LTD v WILLING & THOMAS

Judgment of The Full Court

(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Sulan)

19 August 2004

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

Application for leave to appeal to the Full Court against an interlocutory order of a District Court Judge dismissing an appeal from a Master's decision to refuse to set aside a charging order - ex parte application considered in private - no matter of general importance in issue between parties - no error detected in reasons of Judge or Master - leave to appeal refused.

Supreme Court Rules 1987 r96A.02(1); District Court Act 1991 s43(2)(b), referred to.

BARONGLOW PTY LTD v WILLING & THOMAS
[2004] SASC 245

Full Court:  Mullighan, Nyland and Sulan JJ

1. MULLIGHAN J:               This is an application for leave to appeal to the Full Court against an interlocutory order of a Judge of the District Court dismissing an appeal from a Master of that Court.  On the 13 April 2004 a Judge of the Supreme Court refused leave to appeal to the Full Court.  The applicant now seeks leave to appeal from the Full Court.

2. The applicant is the plaintiff in an action in the District Court against the first respondent, Mr Willing.  The previous plaintiff in the action is Mr Jordan who is a legal practitioner and who undertook legal work for Mr Willing and brought the action to recover unpaid legal fees.  On 30 March 1998 he engaged the respondent Thomas to act as his solicitor in that action and Mr Thomas did so.  Mr Willing paid $60,000 into the suitors fund of the Court to abide the result of the action.

3. Mr Jordan was declared bankrupt on 24 August 1998.  At this time Mr Thomas had rendered accounts for his fees and costs to Mr Jordan for a total sum of $2,283.  Later he lodged a proof of debt for $5,711.03 which included the amount of $2,283.  In his proof of debt, Mr Thomas answered questions so as to indicate that there was no property over which security was held and there was no security.

4. The trustee in Mr Jordan’s bankruptcy assigned Mr Jordan’s interest in the estate to the applicant which is a company controlled by Mr Jordan.  The applicant was substituted for Mr Jordan as plaintiff in the action.  Mr Thomas then made an application for an order charging the amount due to him over the money in Court.  Such an order was made on 12 August 1999 by a Master.  The fund was charged with:

   “a. the payment of all professional fees and disbursements properly due on a solicitor-own client basis, at the time of payment, by the said Neville John Jordan to David Graham Thomas, Solicitor, in respect of this action pursuant to Terms of Engagement agreed between Neville John Jordan and David Graham Thomas in writing on 30 March 1998.”

5. Eventually the applicant obtained judgment against Mr Willing for $56,000 with a provision that $12,000 be retained in the suitors fund presumably to abide the outcome of the claim of Mr Thomas.

6. The applicant applied to a Master to set aside that charging order and contended that by his answers to questions in the proof of debt, Mr Thomas had abandoned, either expressly or by necessary implication, any claim to a charge or lien over the remaining money in the suitors fund and had elected, irretrievably, to prove in the bankruptcy of Mr Jordan as an unsecured creditor.  The Master rejected that contention and refused to set aside the charging order.

7. The applicant appealed and that appeal was dismissed.  Both the Master and the Judge gave extensive reasons for their decisions and concluded that the charging order was correctly made.  The applicant then sought leave to appeal to this Court on an ex parte basis but the Judge who heard the application said that she would not hear the application for leave unless it was served on Mr Thomas.  Service was effected and the Judge heard submissions from Mr Jordan as a director of the applicant and counsel for Mr Thomas.  Mr Jordan is a former practitioner of this Court.  The Judge permitted him to make submissions.

8. The present application is made ex parte and has been considered in private.  Mr Jordan intimated that the applicant did not want to make any submissions other than as set out in a written outline of argument.

9. R 96A.02(1) of the Supreme Court Rules 1987, which relates to appeals from a District Court to a Judge of this Court, provides that unless a Judge of the District Court has certified that a proposed appeal from an interlocutory order involves a point of law or importance which justifies it being reviewed on an interlocutory appeal or that there is a point of sufficient importance to the proceedings to warrant it being reviewed on an interlocutory appeal without waiting for a final judgment in the action on appeal from an interlocutory judgment under s 43(2)(b) of the District Court Act 1991 it is subject to leave being obtained from this Court. No such certificate was sought or given.

10. On the application for leave to appeal, the Judge of this Court held that there was no matter of “general importance” in issue between the applicant and Mr Thomas.  She observed that the amount of money secured by the charging order has already been “swamped” by the cost of these proceedings.  I agree with those observations.

11. Both the Master and the District Court Judge gave extensive reasons for the justification of the charging order.  I have not detected any error in those reasons or in the exercise of the discretion of the Master.  Proceedings by Mr Thomas against the applicant for the recovery of his fees for the legal work undertaken by him on behalf of Mr Jordan and for his costs in these proceedings will be resolved in the District Court.  There is no basis for intervention on appeal at the interlocutory stage of the proceedings.  Should the applicant be unsuccessful upon the resolution of the action, it may pursue such rights of appeal as are available.

12. In my view, there is no basis for the grant of leave to appeal to the Full Court and I would refuse leave.

13. NYLAND J:          I agree with the reasons of Mullighan J.

14. SULAN J: I agree with the reasons of Mullighan J.