Bell v Hartnett

[2022] NSWCA 42

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bell v Hartnett [2022] NSWCA 42

Hearing dates:

22 March 2022

Date of orders:

22 March 2022

Decision date:

22 March 2022

Before:

Basten JA

Decision:

(1)   Dismiss the notice of motion filed on 7 December 2021 by Mr Hartnett.

(2)   Order that Mr Hartnett pay the plaintiff’s costs of the motion forthwith.

Catchwords:

CIVIL PROCEDURE – proceedings in Equity Division – claim for order that solicitor disgorge fees from proceeds of mortgagee sale – removal to Court of Appeal – whether exercise of disciplinary jurisdiction – order to disgorge excess legal costs not claim for costs against legal practitioner

COURTS AND JUDGES – supervisory jurisdiction – Court of Appeal – solicitor acting for mortgagee – property sold – solicitor appropriated proceeds from sale of property for professional fees – claim by mortgagor for amount in excess of reasonable legal costs – whether order for disgorgement by solicitor invoked disciplinary jurisdiction – Supreme Court disciplinary jurisdiction not enlivened

Cases Cited:

Atanaskovic Hartnell v Birketu Pty Ltd [2020] NSWSC 573

Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270 Council of the NSW Bar Association v Siggins [2021] NSWCA 40

Myers v Elman [1940] AC 282

Newell; Muriniti v De Costi (2018) 97 NSWLR 398; [2018] NSWCA 49

Robert Anthony Bell v Beau Timothy John Hartnett Lawyers [2021] NSWSC 202

Category:

Procedural rulings

Parties:

Beau Timothy John Hartnett t/as Hartnett Lawyers (Applicant on the motion)
Robert Anthony Bell (Respondent on the motion)

Representation:

Counsel:
Ms I J King (Applicant on the motion)
Mr S W W Sykes (Respondent on the motion)

Solicitors:
Hartnett Lawyers (Applicant on the motion)
McVittie Legal (Respondent on the motion)

File Number(s):

2020/254590

Judgment

1. BASTEN JA: On 7 December 2021 the respondent, Beau Timothy John Hartnett, filed a motion in proceedings in the Equity Division in which he was the defendant, seeking to have the matter removed into the Court of Appeal. The motion was not determined in the Equity Division but, appropriately, was itself transferred to this Court so that this Court could determine whether the removal order should be made.

2. The circumstances of the application are curious. They result from the working out of orders made by consent in the Possession List in the Common Law Division by Davies J on 29 April 2016. The judge made an order for possession of a property in Ballina on the north coast of New South Wales. The property was formerly owned by Mabel Deakin-Bell, who had been married to Robert Deakin-Bell. When the marriage ended, a property settlement in November 1994 gave ownership of the property to Mabel, subject to a registered first mortgage to Robert securing a debt of $30,000. Robert had a second marriage, to Gwendoline Deakin-Bell. On their separation, Robert assigned the debt and transferred the mortgage securing the debt to Gwendoline.

3. The mortgagor, Mabel Deakin-Bell, died in September 2013 leaving her son Robert Anthony Bell (the plaintiff) as the executor…