Grogan v Orr

Case [2001] NSWCA 114
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 2001

PARTIES :
Dennis Patrick Grogan and Lewis James Webb - Appellants
Leonard Cornelius Orr - Respondent
JUDGMENT 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 - Respondent
SOLICITORS: Turtons - Appellant
Stuart & Mills - Respondent
CATCHWORDS: 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 214
DECISION: 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

GROGAN & ANOR v ORR

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 appeal concerned a dispute between a former client, Mr Grogan, and his former solicitors, Orr and Orr. Mr Grogan sought an account from his solicitors regarding funds received from the sale of a property. The solicitors claimed they were entitled to retain a portion of these funds pursuant to an irrevocable authority given by Mr Grogan, which they argued constituted an equitable assignment of future property. Mr Grogan contended that the authority was invalid and that the solicitors had no right to retain the funds.

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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