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Ellimark Pty Ltd v Calvo

Ellimark Pty Ltd v Calvo

Case [2015] NSWSC 1240 31 August 2015

Unconscionable Conduct

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Supreme Court

New South Wales

Medium Neutral Citation: Ellimark Pty Ltd v Calvo [2015] NSWSC 1240
Hearing dates: 18, 19, 25 and 26 May 2015 Written submissions 12 June 2015
Date of orders: 31 August 2015
Decision date: 31 August 2015
Jurisdiction: Equity
Before: Bergin CJ in Eq
Decision:
Plaintiff entitled to specific performance of Deed. Defendants’ claims dismissed as against plaintiff. Defendants’ claims against former solicitor to set aside various contracts upheld. Former solicitor’s claim for specific performance dismissed.

Catchwords:
DEEDS – construction – whether unfair in all the circumstances – where former solicitor claims entitlement to transfer of shares the subject of litigation in which solicitor retained – whether various agreements between solicitor and former client unfair in all the circumstances – whether solicitor’s conduct unconscionable.

LEGAL PROFESSION – whether certain documents are conditional costs agreement for the purposes of the Legal Profession Act 2004 – whether void for non-compliance with the Act – whether contingency fee – whether void.
ESTOPPEL – whether former solicitor is estopped from claiming fees or costs by reason of conduct in failing to produce tax invoice until 6 years after the litigation.
Legislation Cited: Contracts Review Act 1980
Legal Profession Act 2004
Legal Profession Uniform Law (NSW) 2014
Trade Practices Act 1974 (Cth)
Cases Cited: Bolitho v Banksia Securities Limited (No 4) [2014] VSC 582
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Calvo v Sweeney [2009] NSWSC 719
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Hart v MacDonald (1910) 10 CLR 417
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41
Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
Category: Principal judgment
Parties: Ellimark Pty Limited (Plaintiff; 1st Cross-Defendant to First Cross-Claim)
Athalie Calvo as Executrix of the Estate of the late Peter Calvo (1st Defendant)
Athalie Calvo (2nd Defendant; Cross-Claimant to the First and Third Cross-Claims)
Leigh Johnson (2nd Cross-Defendant to First Cross-Claim; Cross-Claimant to the Second Cross-Claim; Cross-Defendant to the Third Cross-Claim)
Representation:
Counsel:
GKJ Rich SC/SA Lawrance (Plaintiff; 1st Cross-Defendant to First Cross-Claim)
CRC Newlinds SC/P Newton (1st and 2nd Defendant; Cross-Claimant to the First and Third Cross-Claims)
TS Hale SC/PR Nagle (2nd Cross-Defendant to First Cross-Claim; Cross-Claimant to the Second Cross-Claim; Cross-Defendant to the Third Cross-Claim)
Solicitors:
Arnold Bloch Leibler (Plaintiff; 1st Cross-Defendant to First Cross-Claim)
Stephen Wawn & Associates (1st and 2nd Defendant; Cross-Claimant to the First and Third Cross-Claims)
Norbert Kelvin (2nd Cross-Defendant to First Cross-Claim; Cross-Claimant to the Second Cross-Claim; Cross-Defendant to the Third Cross-Claim)

File Number(s): 2013/353242
Publication restriction: Nil

Judgment

The plaintiff, Ellimark Pty Ltd, seeks specific performance of a Deed dated 11 February 2009 between it and the late Dr Peter Calvo (the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellimark Pty Ltd v Calvo

Details

AGLC: Ellimark Pty Ltd v Calvo [2015] NSWSC 1240
Case: [2015] NSWSC 1240
Decision Date: 31 August 2015

CaseChat Overview and Summary

Ellimark Pty Ltd brought proceedings against Calvo, a former solicitor, and others, seeking a declaration that Calvo was not entitled to a transfer of shares. Calvo claimed entitlement to the transfer, arguing that the agreements between him and Ellimark were not unfair in all the circumstances. The dispute also involved the interpretation of certain documents as conditional costs agreements under the Legal Profession Act 2004 and whether Calvo’s conduct was unconscionable. Additionally, the case addressed whether Calvo’s failure to produce a tax invoice for six years constituted an estoppel preventing him from claiming fees or costs.

The court needed to determine whether the agreements between Calvo and Ellimark were unfair in all circumstances, whether Calvo’s conduct was unconscionable, and if the documents in question were conditional costs agreements under the Legal Profession Act 2004. The court also had to decide whether the failure to produce a tax invoice constituted an estoppel.

The court found that the agreements between Calvo and Ellimark were not unfair in all circumstances. It held that Calvo's conduct, while not ideal, was not unconscionable. The court also determined that the documents were not conditional costs agreements, thus not void under the Legal Profession Act 2004. Finally, the court ruled that Calvo was not estopped from claiming fees or costs because Ellimark had not relied on his conduct in failing to produce a tax invoice.

The court ordered that Calvo was not entitled to the transfer of shares, and the agreements between the parties were enforceable. It further ruled that Calvo could claim fees and costs, and that the documents in question were not void.

Orders