Doulaveras v Daher

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.