New South Wales
Court of Appeal
CITATION: Doulaveras v Daher [2009] NSWCA 58 HEARING DATE(S): 10 December 2008
JUDGMENT DATE:
20 March 2009JUDGMENT OF: Giles JA at 1; Campbell JA at 6; Macfarlan JA at 173 DECISION: (1) Appeal dismissed with costs.
(2) Note that the stay ordered by Allsop P on 7 July 2008 concerning orders below in the present proceedings ceases upon the making of these orders.
(3) Vary order 2 made by Allsop P on 7 July 2008 to read:
Order that the Appellant by herself, her servants and agents or otherwise be restrained from selling, mortgaging, leasing or otherwise dealing in any way with the land comprised in folio 33/381014 and known as 26 Ocean Avenue, Newport, New South Wales or any interest therein, save for the purpose of carrying out orders 3 and 6 made by Windeyer J on 25 June 2008.
(4) Order (3) hereof be dissolved upon compliance by the Appellant with orders 3 and 6 made by Windeyer J on 25 June 2008.CATCHWORDS: LEGAL PROFESSION – lawyers – retainer – challenge to – proper procedure for a challenge to retainer – whether a challenge to retainer can be pleaded by way of defence – whether a separate motion is needed to mount a challenge to retainer – circumstances where a challenge to retainer can be litigated together with a final hearing – onus of proof of showing that solicitor lacks authority – PROCEDURE – courts and judges generally – proper procedure for a challenge to retainer – inherent power of a court to stay proceedings as an abuse of process – PROCEDURE – judgments and orders – effect of judgments – effect of pleading an argument by defence – difference between outcome of a defence and a notice of motion – difference between estoppel by judgment and stay or striking out of action – PROCEDURE – courts and judges generally – effect of pleadings alleging technical language with no legal content – PROCEDURE – Supreme Court procedure – New South Wales – bringing an action by tutor – meaning of “person under legal incapacity” – EQUITY – general principles – unconscientious conduct – special disability – lack of capacity to understand the effect of transactions – whether evidence shows problems with cognition and language – EVIDENCE – witnesses – failure to call witness due to problems with cognition and language – whether Jones v Dunkel inference should be drawn – whether absence of witness is unexplained – - WORDS AND PHRASES – “estoppel by judgment” – “challenge to retainer” – “challenge to solicitor’s retainer” – “person under legal incapacity” LEGISLATION CITED: Bankruptcy Rules
Civil Procedure Act 2005
Interpretation Act 1987
Powers of Attorney Act 2003
Protected Estates Act 1983
Real Property Act 1900
Supreme Court Rules 1970
Trading With The Enemy Act 1914 (UK) (4 & 5 Geo V, c 87)
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Anthanasopoulos v Moseley [2001] NSWCA 266; (2001) 52…
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- AGLC
- Doulaveras v Daher [2009] NSWCA 58
- Case
- [2009] NSWCA 58
- Decision Date
CaseChat Overview and Summary
The case of *Doulaveras v Daher* was heard in the New South Wales Court of Appeal, involving a challenge to a solicitor's retainer. The appellant sought to challenge the retainer, and the central dispute concerned the proper procedural avenue for such a challenge.
The legal issues before the Court of Appeal included whether a challenge to a solicitor's retainer could be raised by way of defence, or if it necessitated a separate motion. The court also considered the circumstances under which such a challenge could be litigated concurrently with a final hearing, the onus of proof on a party alleging a solicitor's lack of authority, and the potential for a court to stay proceedings as an abuse of process under its inherent powers. Furthermore, the court examined the distinction between the outcome of a defence and a notice of motion, and the difference between estoppel by judgment and a stay or striking out of an action.
The Court of Appeal reasoned that while a challenge to a retainer could, in certain circumstances, be pleaded by way of defence, the specific allegations made in this case were not sufficiently framed to constitute a defence. The court distinguished between a defence that goes to the merits of the claim and a challenge to the solicitor's authority to act, which often requires a more specific procedural approach. The court also considered the appellant's alleged lack of legal capacity and cognitive issues, and whether these factors impacted the proper procedure for the challenge.
The appeal was dismissed with costs. The court also varied a previous order concerning the restraint of dealings with a specific parcel of land, with that restraint to be dissolved upon the appellant's compliance with earlier orders.
The legal issues before the Court of Appeal included whether a challenge to a solicitor's retainer could be raised by way of defence, or if it necessitated a separate motion. The court also considered the circumstances under which such a challenge could be litigated concurrently with a final hearing, the onus of proof on a party alleging a solicitor's lack of authority, and the potential for a court to stay proceedings as an abuse of process under its inherent powers. Furthermore, the court examined the distinction between the outcome of a defence and a notice of motion, and the difference between estoppel by judgment and a stay or striking out of an action.
The Court of Appeal reasoned that while a challenge to a retainer could, in certain circumstances, be pleaded by way of defence, the specific allegations made in this case were not sufficiently framed to constitute a defence. The court distinguished between a defence that goes to the merits of the claim and a challenge to the solicitor's authority to act, which often requires a more specific procedural approach. The court also considered the appellant's alleged lack of legal capacity and cognitive issues, and whether these factors impacted the proper procedure for the challenge.
The appeal was dismissed with costs. The court also varied a previous order concerning the restraint of dealings with a specific parcel of land, with that restraint to be dissolved upon the appellant's compliance with earlier orders.
Orders
Orders of the court
(1) Appeal dismissed with costs. (2) Note that the stay ordered by Allsop P on 7 July 2008 concerning orders below in the present proceedings ceases upon the making of these orders. (3) Vary order 2 made by Allsop P on 7 July 2008 to read: Order that the Appellant by herself, her servants and agents or otherwise be restrained from selling, mortgaging, leasing or otherwise dealing in any way with the land comprised in folio 33/381014 and known as 26 Ocean Avenue, Newport, New South Wales or any interest therein, save for the purpose of carrying out orders 3 and 6 made by Windeyer J on 25 June 2008. (4) Order (3) hereof be dissolved upon compliance by the Appellant with orders 3 and 6 made by Windeyer J on 25 June 2008.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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