CITATION: GROGAN v ORR [2001] NSWCA 114 revised - 3/08/2001 FILE NUMBER(S): CA 40592/99 HEARING DATE(S): 2 April 2001 JUDGMENT DATE:
2 August 2001PARTIES :
Dennis Patrick Grogan and Lewis James Webb - Appellants
Leonard Cornelius Orr - RespondentJUDGMENT OF: Meagher JA at 1; Sheller JA at 2; Powell JA at 72
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :10846/97 LOWER COURT
JUDICIAL OFFICER :Sperling J
COUNSEL: A Robertson SC/M J Leeming - Appellant
I M Wales SC - RespondentSOLICITORS: Turtons - Appellant
Stuart & Mills - RespondentCATCHWORDS: LEGAL PRACTIONERS - solicitor’s liability to account pursuant to an irrevocable authority despite new instructions - whether such authority constituted an equitable assignment of future property - whether consideration provided - whether a lien was held over the proceeds of sale of the property which a solicitor had helped the client to receive - whether solicitor was guilty of laches. LEGISLATION CITED: Family Law Act 1975 (Cth) CASES CITED: Alliance Bank (Ltd) v Broom (1964) 2 Dr & Sm 289; 62 ER 631
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Fleet v Perrins [1868] LR 2 QB 536
Griffin v Weatherby [1868] LR 3 QB 753
H S Bird & Co v T he Ship ‘Karu’ (1927) 27 SR (NSW) 476
Johns v Cassel (1993) FLC 92-364
Laurie & Morewood v Dudin & Sons [1926] 1 KB 223
Ormerod v Tate (1801) 1 East 464; 102 ER 179
Re a Barrister and Solicitor (1979) 40 FLR 26
Read v Dupper (1795) 6 TR 361; 101 ER 595
Ross v Buxton [1889] LR 42 ChD 190
The Paris [1896] P 77
Townsend v Reade [1835] 4 LJ Ch 233
Twigg v Keady (1996) FLC 92-712
Walker v Rostron [1842] 9 M & W 411; 152 ER 174
Welsh v Hole (1779) 1 Dougl 238; 99 ER 155
Worrell v Power & Power (1993) 46 FCR 214DECISION: 1. Appeal allowed with costs; 2. Set aside the orders made by Sperling J on 15 July 1999; 3. In lieu thereof, judgment for the first and second defendants in the proceedings below with costs.
CA 40592/99
CL 10846/97
MEAGHER JA
SHELLER JA
POWELL JA
Thursday 2 August 2001
The respondent solicitor was owed an amount of costs by a former client for whom he had acted in the Family Court. The appellant solicitors acted for this client in the sale of property, which, by Family Court orders, the respondent was entitled to part of the proceeds of. The client gave the appellants an ‘irrevocable’ authority to pay the respondent the costs owing to him out of the proceeds of sale, but later revoked the authority. On the client’s instructions, the appellants paid the proceeds of the sale to the client.
The trial Judge found in favour of the respondent, on the basis of the following principle: where an agent is directed…
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- AGLC
- Grogan v Orr [2001] NSWCA 114
- Case
- [2001] NSWCA 114
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the irrevocable authority given by Mr Grogan to his solicitors amounted to a valid equitable assignment of future property, whether there was sufficient consideration for such an assignment, whether the solicitors held a lien over the proceeds of sale, and whether the claim was barred by laches. The court was required to determine the enforceability of the irrevocable authority and the solicitors' entitlement to the funds in light of these issues.
The Court of Appeal found that the irrevocable authority did not constitute a valid equitable assignment of future property because it lacked the necessary certainty and did not assign a specific future property. The court also held that there was no consideration provided for the purported assignment. Furthermore, the court determined that the solicitors did not possess a lien over the proceeds of sale, as their involvement in facilitating the receipt of funds did not create a solicitor's lien in these circumstances. The court also found that the defence of laches was not made out. Consequently, the appeal was allowed, the orders of the court below were set aside, and judgment was entered for the defendants with costs.
Orders
Orders of the court
1. Appeal allowed with costs; 2. Set aside the orders made by Sperling J on 15 July 1999; 3. In lieu thereof, judgment for the first and second defendants in the proceedings below with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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