Firth v Hsu
[2013] NSWSC 910
•09 July 2013
Supreme Court
New South Wales
Case Title: Firth v Hsu Medium Neutral Citation: [2013] NSWSC 910 Hearing Date(s): 9 July 2013 Decision Date: 09 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. That the second defendant pay into court the sum of $115,940, until further order of the Court.
2. That the plaintiff serve the summons, together with Mr McQuilkin's affidavit, exhibit 1, and these reasons upon Ms Hsu, together with any other necessary documents in these proceedings, by email at the address nominated in paragraph 7 of the summons filed on 27 June, and at the street address which appears in the correspondence received by the second defendant from Ms Hsu, which forms part of exhibit 1.
3. That the matter come before the Registrar on 30 July 2013 for directions.
4. Costs are reserved.
Catchwords: PROCEDURE - payment of funds - funds presently held by second defendant - order seeking the disputed sum be paid either into plaintiff's trust account or into court, pending determination of the issues - sum to be paid into court - orders made Category: Procedural and other rulings Parties: Stephen Paul Firth trading as Firths, The Compensation Lawyers (Plaintiff)
Li Ching Hsu (First Defendant)
Maxwell Donnelly as trustee of the bankrupt estates of Russell Walter Keddie, Tony Barakat and Scott Roulstone (Second Defendants)Representation - Counsel: Counsel:
Mr R Goodridge (Plaintiff)- Solicitors: Solicitors:
Firths, The Compensation Lawyers (Plaintiff)
No appearance (First Defendant)
Church & Grace (Second Defendant)File Number(s): 2013/196267 Publication Restriction: None
EXTEMPORE JUDGMENT
By summons filed on 27 June 2013 the plaintiff seek various declarations and orders in relation to a sum of some $115,940, which is a sum which they claim is owed to them by their former client, the first defendant, Ms Hsu for work which they successfully undertook on her behalf in District Court proceedings. Other orders are sought in relation to that sum, from the proceeds of those proceedings, which are presently held by the second defendant. The plaintiff seeks that the disputed sum be paid either into its trust account or into Court, pending determination of the issues lying between them and Ms Hsu.
The matter came into the list before me today for hearing in circumstances where there was no appearance by Ms Hsu or the second defendant. She resides in Taiwan. A submitting appearance was filed by the second defendant on 4 July.
The orders sought today are supported by an affidavit sworn by Mr Andrew McQuilkin, the plaintiff's solicitor, on 27 June 2013. Also tendered was correspondence received by the plaintiff from the second defendant, who is the trustee in bankruptcy of the property of three former partners of the law firm Keddies: Mr Russell Keddie, Mr Tony Barakat and Mr Scott Roulstone. That correspondence attaches correspondence which the second defendant has received from Ms Hsu about the matters in issue between the parties in these proceedings.
Mr McQuilkin's affidavit explains that the plaintiff was retained by Ms Hsu to act on her behalf in respect of a claim which she brought against Keddies Lawyers in the District Court for over-charging. Those proceedings were settled in Ms Hsu's favour, with the result that a judgment was entered in her favour in the sum of $143,900 plus costs to be agreed or assessed.
Before the judgment sum was paid, Mr Keddie, Mr Barakat and Mr Roulstone were all made bankrupt and their estates were vested in the second defendant.
On 18 June 2012 the plaintiff rendered an account to Ms Hsu for solicitor and client costs for their work in the District Court, in the sum of $115,940. A claim for Ms Hsu's costs in the District Court proceedings were included in a proof of debt of 21 June 2012 in respect of the bankrupt estates of the former Keddies partners. The total sum of the proof of debt for those proceedings was some $262,128.59. That was made up of the judgment debt of $143,900, post judgment interest of $2,288.59 and Ms Hsu's party/party costs and disbursements of $115,940. That totalled some $262,128.59.
By notice of rejection of formal proof of debt or claim of 11 December 2012 the second defendant admitted a proof of debt in the sum of $236,644.27. That sum included Ms Hsu's party/party costs in the District Court proceedings, which were allowed to the extent of some $90,455.68.
Mr McQuilkin's affidavit reveals that a disagreement emerged between the plaintiff and Ms Hsu as to those costs. Email correspondence annexed to his affidavit received from Miss Hsu revealed a degree of difficulty in her explanation as to the basis of the dispute. That has been somewhat clarified by correspondence of 7 July 2013, received by the second defendant. Ms Hsu there observed that the case had gone well, but that the bankruptcy had followed. She also made a complaint that the plaintiff had over-charged her for the work which they undertook in the District Court. Other complaints are made about an absence of authority for the plaintiffs to have acted for Miss Hsu after 17 April, and allegations as to breach of court orders by the plaintiff are also made.
Mr McQuilkin's affidavit also reveals the course of negotiations between the plaintiff and the second defendant in relation to the amount which has been accepted should be paid to Ms Hsu and instructions received from her, that the entirety of that amount be sent to her in Taiwan and that nothing be paid to the plaintiff, even as to the party/party costs and disbursements allowed by the second defendant, some $90,455.68.
It is in those circumstances that the plaintiff seek orders for service to be made on Ms Hsu at various nominated email and street addresses and that the disputed sum of $115,940 either be paid into their trust account, or into court, until further order of the Court.
I note the undertakings given in Mr McQuilkin's affidavit at paragraphs 20 as to damages.
In the circumstances I am satisfied that the proposed orders should be made so that, firstly, the disputed sum can be paid into Court and, secondly, that Ms Hsu be given an opportunity to enter an appearance and be heard on the question of the disputed costs, which on the evidence in reality can only revolve around the difference between the $90,455.68 party/party costs which the second defendant has accepted were properly incurred in the District Court proceedings and should be paid, in accordance with the terms of the settlement and the $115,940 solicitor/client costs, which the plaintiff has billed Ms Hsu.
For those reasons I make the following orders:
1. That the second defendant pay into Court the sum of $115,940, until further order of the Court.
2. That the plaintiff serve the summons, together with Mr McQuilkin's affidavit, exhibit 1, and these reasons upon Ms Hsu, together with any other necessary documents in these proceedings, by email at the address nominated in paragraph 7 of the summons filed on 27 June, and at the street address which appears in the correspondence received by the second defendant from Ms Hsu, which forms part of exhibit 1.
3. That the matter come before the Registrar on 30 July 2013 for directions.
4. Costs are reserved.
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