Equuscorp Pty Ltd v Wilmoth Field Warne (a firm)

[2003] VSC 268

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6284 of 2003

EQUUSCORP PTY LTD	Plaintiff
v
WILMOTH FIELD WARNE (A FIRM)	Defendant

WILMOTH FIELD WARNE (A FIRM)	Plaintiff by Counterclaim
V
EQUUSCORP PTY LTD	Defendant by Counterclaim

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2003
DATE OF JUDGMENT:	20 June 2003
CASE MAY BE CITED AS:	Equuscorp Pty Ltd v Wilmoth Field Warne
MEDIUM NEUTRAL CITATION:	[2003] VSC 268

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CONTRACT – provision of legal services – solicitor’s lien – interlocutory injunction -

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C McMillan SC with Mr S Maiden	Phillip Kotsanis
For the Defendant	Mr R Garrett QC	Wilmoth Field Warne

HIS HONOUR:

1. Wilmoth Field & Warne, a firm of solicitors, has acted for Equuscorp Pty Ltd for some years, particularly (for present purposes), in relation to litigation in various courts in this State in which it has been engaged.

1. In the year 2002 the relationship between Equuscorp and its solicitors was the subject of a document entitled a Deed of Costs which set out various matters relating to Wilmoth Field & Warne's retainer by Equuscorp in respect of its litigious activities.  In May 2003 Equuscorp purported to terminate the 2002 agreement on the ground of default by Wilmoth Field & Warne in various particulars which it is not necessary to canvass at this stage.

1. Equuscorp sought to terminate the agreement contained in the Deed of Costs under Clause 17 which provided a termination procedure for unremedied default. It subsequently terminated the agreement, in the alternative, under Clause 2 which is a provision which provides for termination upon 90 days' notice.  Shortly after the purported termination by Equuscorp, Wilmoth Field & Warne itself served notice of default on Equuscorp alleging failures by Equuscorp to comply with other provisions in the deed, particularly those contained in Clause 13 concerning an accounting in respect of fees owing in respect of a matter known as the Beagle matter.

1. On 17 June 2003 Equuscorp issued a writ against Wilmoth Field & Warne, claiming declarations, an injunction and damages for detention of the plaintiff's files by the defendant solicitors.  It sought various equitable remedies to have those files delivered up to its new solicitors, Kelly & Chapman.

1. By a summons filed the same day Equuscorp sought interlocutory relief by way of delivery up of its files immediately, so that its litigation to which those files related could continue in the various courts in which it is being conducted.  In support of that summons it relied upon an affidavit of one Nicola Russo which set out the background to the matter and explained the circumstances in which Equuscorp sought to terminate the 2002 deed, and  its counsel, Ms McMillan of Senior Counsel, filed extensive and extremely helpful submissions on the issue of interlocutory relief by way of delivery up of the documents which the plaintiff seeks. 

1. In effect, the plaintiff seeks a mandatory interlocutory injunction…