Carlisle v Reynolds
[2013] NSWSC 1986
•20 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Carlisle v Reynolds [2013] NSWSC 1986 Hearing dates: 20 December 2013 Decision date: 20 December 2013 Jurisdiction: Common Law Before: Rothman J Decision: Catchwords: INJUNCTIONS - assessment of costs under Legal Professional Act - party resident overseas, no substantial assets - settlement moneys available - Mareva injunction issued Legislation Cited: Legal Professional Act 1987
Legal Professional Act 2004Category: Interlocutory applications Parties: Peter Carlisle (Plaintiff)
Linnette Reynolds (Defendant)Representation: Counsel:
Solicitors:
P Carlisle (Plaintiff)
File Number(s): 2013/377396 Publication restriction: None
Judgment
The plaintiff, Peter Carlisle, is a solicitor who says the defendant, Linette Reynolds, owes him money. The amount owed, if any, is in dispute and the defendant has lodged an application by client for assessment of costs ("the Application") in this Court.
The defendant moves the Court for interlocutory orders striking out the Application and for a Mareva injunction relation to some of the plaintiff's funds held in NSW. The defendant and the plaintiff executed a costs agreement, arising from which the plaintiff says the defendant owes him a further $147,000. An amount, approximately $250,000, has already been paid and is not included in the amount said to be owing.
The fees claimed from the defendant arise from commercial litigation ("the earlier proceedings") in which the plaintiff acted for the defendant. The fees include certain disbursements, including counsel's fees. Orders are sought for the payment out of funds for those disbursements.
On 20 December 2013, the Court issued orders and reserved reasons, inter alia, because of the state of the list. These are the reasons for the orders.
The defendant is a resident of Italy (for the past three years) and has been an overseas resident for a substantial portion, possibly the majority, of the time over which the earlier proceedings were conducted. On 5 November 2013, the defendant terminated the plaintiff's retainer to act on her behalf in the earlier proceedings. On 28 November 2013, the defendant filed the Application. The earlier proceedings have resolved, the details of which are not before the Court in these proceedings.
The affidavit of the plaintiff, sworn 11 December 2013, discloses material upon which the Court, albeit for interlocutory purposes only, is satisfied that, apart from any settlement moneys, the defendant has no, or no substantial, assets and none in NSW or Australia.
The plaintiff seeks a freezing order on any part of the settlement moneys amounting to $141,741.28. He also seeks an order striking out the Application and requiring the defendant to file a different application, being different in form and naming an additional respondent.
Further, as stated, the plaintiff seeks orders that the defendant file an affidavit disclosing assets, liabilities, income, expenditure and the terms upon which the earlier proceedings were resolved ("the disclosure order"); and effect a payment of disbursements ("the disbursements order").
I am satisfied that there is a real risk that whatever assets the defendant holds in NSW or Australia will be dealt with in a manner that would stultify or render ineffective any judgment given by the Court in the substantive matter thereby rendering the Court impotent to administer justice properly or effectively or, worse still, render the Court process an agent of abuse.
As a consequence, the Court issued the freezing order over an amount that would, generally, satisfy the moneys in dispute, as sought.
Further, the Application related expressly only to the Legal Professional Act 1987, now superseded. The plaintiff submits, correctly, that a different form of application should have been filed. The Legal Professional Act 2004 offers a much wider range of relief to the defendant.
As a consequence of the conclusion in the immediately proceeding paragraph, the Court on 20 December 2013 issued orders striking out the current form of application and giving leave to file an amended application. However, it is not for the Court, or an opposing party, to dictate how that application is to be framed or whom it should name as a respondent. So much of the orders seeking that the amended application be in a particular form or name one or more other respondents was refused.
The Court also refused the disclosure orders and the disbursements orders. Neither is so urgent that it should be dealt with ex parte. If the disbursement order were necessary, as is submitted by the plaintiff, to take advantage of an offer of discount, then the plaintiff can meet the amounts from general funds and obtain reimbursements (including interest) at a hearing at which the defendant has had a proper opportunity to prepare and to present her case. For similar reasons, a costs order should, at this stage, be refused.
The forgoing are the reasons for the ex tempore orders issued on 20 December 2013.
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Decision last updated: 08 January 2014
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