EG v DG
[2024] NSWSC 20
•30 January 2024
Supreme Court
New South Wales
Medium Neutral Citation: EG v DG [2024] NSWSC 20 Hearing dates: 30 January 2024 Date of orders: 30 January 2024 Decision date: 30 January 2024 Jurisdiction: Equity - Protective List Before: Elkaim AJ Decision: 1. Leave is granted to EG to file a Notice of Discontinuance.
2. The Notice of Discontinuance is on the following terms:
(a) upon an undertaking from Mr Joerg Schmidt-Liermann to refrain from acting for EG in proceeding 2023/00177002 in a manner other than in the filing of a submitting appearance;
(b) the Notice of Motion filed by DG on 3 October 2023 is dismissed; and
(c) DG’s Notice to Produce filed on 24 January 2024 is set aside;
3. EG is to pay DG’s costs as agreed or assessed up to and including 24 January 2024.
4. DG is to pay EG’s and JM’s costs from 25 January 2024 up to and including today’s hearing as agreed or assessed.
5. EG is to inform the second defendant, the NSW Trustee and Guardian, of these orders within seven days.
Catchwords: CIVIL PROCEDURE – Discontinuance of proceedings – Leave of court – Terms on which proceedings discontinued.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12.1
Category: Procedural rulings Parties: EG (Plaintiff)
DG (First Defendant)
NSW Trustee and Guardian (Second Defendant)
JM (Third Defendant)Representation: Counsel:
Mr T Weller-Wong (Plaintiff)
Mr O Jones (Third Defendant)Mr M Spalding (First Defendant)
Solicitors:
Schmidt-Liermann Pty Ltd (Plaintiff)
SLF Lawyers (First Defendant)
Clear Lawyers (Third Defendant)
File Number(s): 2023/177034; 2023/177002
JUDGMENT
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The proceedings listed today concern an appeal from orders made in the New South Wales Civil and Administrative Tribunal (NCAT) on 22 March 2023 concerning the appointment of a financial manager for EG.
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On 2 June 2023, JM, EG's daughter, filed a notice of appeal in this Court from the NCAT decision. On 4 September 2023, EG filed an amended summons which also amounts to an appeal from the NCAT decision. On the same date JM formalised her appeal with the filing of an amended summons.
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The respective orders sought by JM and EG effectively mirror each other. They challenge the appointment of the NSW Trustee and Guardian as EG's financial manager.
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The NCAT orders have been stayed pending the result of the actions in this Court.
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On 3 October 2023, DG filed a notice of motion seeking an order that Mr Schmidt-Liermann and his firm, Schmidt-Liermann Pty Ltd be restrained from acting on behalf of EG in this Court. DG asserts that Mr Schmidt-Liermann suffers from a “real potential” conflict of interest which would prevent him from acting for EG.
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I do not think it necessary to elaborate on the reasons leading to the asserted conflict of interest. This is because on 25 January 2024 EG filed a notice of motion seeking leave to file in court a notice of discontinuance of her proceedings.
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Obviously if leave is granted Mr Schmidt-Liermann's involvement in EG's proceedings will cease thereby disposing of the asserted conflict of interest.
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Although DG's motion was due to be heard today it was expedient and logical to firstly dispose of EG's recently filed motion for discontinuance. The parties have agreed to the discontinuance.
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Although the NSW Trustee and Guardian, the second defendant, has not been involved, I am satisfied that the NSW Trustee and Guardian is not an active party, so that the consent of that party is not required under the terms of r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW).
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Notwithstanding the general agreement as to the discontinuance, there does remain a small disagreement about costs.
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EG has agreed to pay DG's costs, but only up to 24 January 2024 when consent was sought for the notice of motion. On that day there was an exchange of correspondence in which EG effectively posed the terms of discontinuance that have ultimately been accepted.
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The issue on costs is who should pay the costs since 24 January, and in particular, in relation to today.
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EG says they should be paid by DG because DG could have simply agreed to the notice of discontinuance and there would have been no need for the parties to appear today. A notice of discontinuance could have been filed.
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DG's response is that it was not quite as straightforward.
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DG submitted there was some parrying between the solicitors about the exact terms of what would occur, which continued after 24 January and therefore there should be a costs order in DG's favour or at least there should be no order as to costs.
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In my view, DG could and should have agreed to the notice of discontinuance following the exchange of correspondence on 24 January.
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That correspondence is annexed to the affidavit of Mr Schmidt-Liermann dated 25 January 2024 and effectively shows that EG was at pains to agree to the position being put forward by DG.
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The response by DG to the effect that Mr Schmidt-Liermann should not take part in any other proceedings on behalf EG until the resolution of the appeal could only be described as somewhat bold and unrealistic.
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Taking into account all of these matters, I am of the view that DG should pay the costs of EG and JM after 24 January and including today's hearing. I make the following orders:
Leave is granted to EG to file a Notice of Discontinuance;
The Notice of Discontinuance is on the following terms:
upon an undertaking from Mr Joerg Schmidt-Liermann to refrain from acting for EG in proceeding 2023/00177002 in a manner other than in the filing of a submitting appearance;
the Notice of Motion filed by DG on 3 October 2023 is dismissed; and
DG’s Notice to Produce filed on 24 January 2024 is set aside;
EG is to pay DG’s costs as agreed or assessed up to and including 24 January 2024;
DG is to pay EG’s and JM’s costs from 25 January 2024 up to and including today’s hearing as agreed or assessed; and
EG is to inform the second defendant, the NSW Trustee and Guardian, of these orders within seven days.
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Decision last updated: 30 January 2024
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