Fordyce v Slattery - [2022] NSWSC 719

Supreme Court

New South Wales

Medium Neutral Citation: Fordyce v Slattery [2022] NSWSC 719
Hearing dates: On the papers
Date of orders: 1 June 2022
Decision date: 01 June 2022
Jurisdiction: Equity
Before: Darke J
Decision:
See orders at [26].

Catchwords:
CIVIL PROCEDURE – funds in Court – dispute as to whom funds should be paid – competing claimants mutually indebted – set-off – order for payment to both claimants to reflect set-off – one claimant not a party to proceedings – order made for joinder
COSTS – proceedings concerning caveats – underlying dispute determined in other proceedings – no need for proceedings to continue once money paid into Court – proceedings to be dismissed – appropriate to order otherwise than the plaintiff pay the defendants’ costs – costs order made in favour of plaintiff

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 21
Conveyancing Act 1919 (NSW), s 12
Real Property Act 1900 (NSW), s 74K, s 74O
Uniform Civil Procedure Rules 2005 (NSW), r 6.24, r 41.3, r 41.11, r 42.20

Cases Cited:
Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522
Slattery v Fordyce; Fordyce v Slattery [2019] NSWSC 173

Category: Procedural rulings
Parties: Paul Fordyce formerly t/as PMF Legal (Plaintiff)
Rhonda Slattery (First Defendant)
Dee-Tech Pty Ltd (Second Defendant)
Representation: Solicitors:
Drayton Sher Lawyers (First and Second Defendants)

File Number(s): 2016/231295
Publication restriction: None

Judgment

This judgment concerns a Notice of Motion dated 2 February 2022 whereby the plaintiff seeks an order that a sum of $12,882.54 be paid out of Court. The plaintiff also seeks an order for the payment of his costs of the proceedings, with the proceedings to be dismissed thereafter. In order to understand the circumstances in which the motion has been brought, it is necessary to refer to the history of the proceedings, and also to aspects of related proceedings that involve the same parties.
These proceedings were commenced by Summons filed on 1 August 2016. The plaintiff, Mr Fordyce, sought an order under s 74K of the Real Property Act 1900 (NSW) for the extension of the operation of a caveat (AK577556) he had lodged in July 2016 against the title to a property in Davistown owned by the first defendant, Mrs Slattery. Mrs Slattery was at that time the only defendant.
The interest claimed in the caveat was a charge. The claimed charge was based upon the provisions of an Engagement Letter (dated 22 February 2010) that had been signed by Mrs Slattery for herself and also on behalf of companies associated with her known as Dee-Tech Pty Ltd (“Dee-Tech”) and Bright Star Laundry Pty Ltd (“Bright Star”). The Engagement Letter concerned the provision of legal services by Mr Fordyce, who was then practising as a solicitor.
On 12 October 2015, Mr Fordyce had obtained a judgment in the Local Court to the effect that Mrs Slattery (although not the companies) was liable to him under the Engagement Letter…

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.

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Details

Case: [2022] NSWSC 719
Decision Date: 01 June 2022

CaseChat Overview and Summary

In Fordyce v Slattery, the case before the court involved a dispute concerning funds that had been deposited into the Court. The parties involved were Fordyce and Slattery, both of whom claimed entitlement to the funds based on mutual indebtedness. The matter was heard in the relevant court of jurisdiction. The primary issue for the court to decide was whether the funds should be paid to Fordyce or Slattery, given that they were both creditors of each other.

The court examined the principle of set-off, which allows for debts owed by the parties to be balanced against each other. In this case, both Fordyce and Slattery had claims against each other, which needed to be reconciled. The court determined that the appropriate resolution was to order payment to both claimants in a manner that reflected the set-off of their mutual debts. However, since Slattery was not a party to the proceedings, the court also made an order for Slattery to be joined as a party to the proceedings to ensure that the set-off could be properly executed.

The reasoning of the court was grounded in the need for an equitable resolution of the competing claims. The court found that once the money had been paid into Court, there was no need for the proceedings to continue, as the underlying dispute had already been determined in other proceedings. Consequently, the court dismissed the proceedings but recognised the need to make a costs order. Given the circumstances, the court decided it was appropriate to order the costs in favour of the plaintiff, Fordyce, rather than the defendants, as would typically be the case in such matters.

The final orders of the court were that Slattery be joined as a party to the proceedings, that payment be made to both Fordyce and Slattery in accordance with the set-off of their mutual debts, and that the costs of the proceedings be awarded to Fordyce. This decision ensured that the mutual indebtedness was properly accounted for and that the parties received what was owed to them in a fair and equitable manner.

Orders