Ho v Fordyce (ex parte) - [2014] NSWSC 1404

Supreme Court

New South Wales

Medium Neutral Citation: Ho v Fordyce (ex parte) [2014] NSWSC 1404
Hearing dates: 1 October 2014
Decision date: 01 October 2014
Jurisdiction: Equity Division
Before: Rein J
Decision:
Motion granted

Catchwords: EQUITY - Interlocutory application - Ex parte application - Anton Piller orders - Prospect of concealment or removal of evidence - Where ambit of information sought is narrow - Where the consequences of the orders will cause little or no prejudice to the defendant if there has been no recent creation, and will assist the plaintiff to prove his case if there has.
Cases Cited: Australia's Residential Builder Pty Ltd v Wiederstein (2014) VSC 430
Halpin v Lumley General Insurance Limited (2009) 78 NSWLR 265
Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1
Category: Interlocutory applications
Parties: Robert Ho (Plaintiff)
Rhodium NSW Pty Ltd (Second Plaintiff)
The Trading House Pty Ltd (Third Plaintiff)
Paul Mervyn Fordyce t/as PMF Legal Trading (First Defendant)
PMF Legal Limited (Second Defendant)
Daniel John Papps (Third Defendant)
Daniel Alejandro Cravero (Fourth Defendant)
Representation: Counsel:
J Hyde (Plaintiffs)
Solicitors:
K&L Gates (Plaintiffs)

File Number(s): 2014/288128

EX TEMPORE REASONS FOR Judgment

This is an ex parte application brought by the plaintiffs in this matter who were clients of the first defendant. Also joined in the present summons are persons connected with that practice which is an incorporated legal practice. I shall refer to the defendants as "the solicitor". What is sought today, in effect, might be described as an Anton Piller order seeking to obtain access to, and the making of copies of, material on the computer of the solicitor.

The background of the matter is this: the plaintiffs being clients of the solicitor have received many invoices for significant amounts by way of costs and disbursements from the solicitor. In the absence of payment of some of those costs, the solicitor has sought and made demands for payment, the response to which by the plaintiffs was to require an assessment of costs.

The solicitor has commenced two separate proceedings in this Court for the assessment of costs. An issue which has arisen in those proceedings is that the solicitor asserts that there were costs agreements in place between the firm and the clients. The clients dispute that and assert that there were no costs agreements between them and the solicitor.

The plaintiffs in support of the contention that the costs agreements are of recent invention rely on the affidavits of Wilson Wong of 1 October 2014, Robert Ho of 1 October 2014 and Mark Webeck, the current solicitor of the plaintiffs, of 29 September 2014. There is exhibited to the affidavit of Mr Wong an exhibit entitled "WW Exhibit".

The concern of the plaintiffs is that if discovery was sought in the normal manner from the solicitor, the solicitor may be able to alter or destroy evidence as to the date of creation of these various costs agreements.

I indicated some concern about whether or not this falls…

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.

Continue reading Ho v Fordyce (ex parte)

Details

AGLC: Ho v Fordyce (ex parte) [2014] NSWSC 1404
Case: [2014] NSWSC 1404
Decision Date: 01 October 2014

CaseChat Overview and Summary

In the matter of Ho versus Fordyce, the court was presented with an interlocutory application made ex parte by the plaintiff, Ho. The dispute involved an application for Anton Piller orders, which are a type of court order allowing a plaintiff to enter the defendant's premises to search for and seize evidence. The application was made in the Federal Court of Australia, with the purpose of obtaining evidence from Fordyce to support the plaintiff's claim. The plaintiff alleged that Fordyce had acted in a manner that would likely result in the concealment or removal of evidence, which would prejudice the plaintiff's ability to prove their case at trial.

The legal issues the court had to decide included whether the plaintiff had demonstrated a strong enough case to justify the issuance of Anton Piller orders, and whether the consequences of the orders would cause little or no prejudice to the defendant if there had been no recent creation, and would assist the plaintiff to prove their case if there had been. The court had to balance the plaintiff's need for evidence against the defendant's right to privacy and protection from unreasonable search and seizure.

The court considered the evidence presented by the plaintiff and determined that there was a strong prospect that evidence of the alleged wrongdoing would be concealed or removed if the orders were not granted. The court also found that the consequences of the orders would cause little or no prejudice to the defendant if there had been no recent creation, and would assist the plaintiff to prove their case if there had been. The court therefore granted the plaintiff's application for Anton Piller orders. The court emphasised that the ambit of the information sought was narrow, and that the orders were tailored to the specific circumstances of the case. The court also noted that the orders were not a substitute for a full trial, and that the ultimate burden of proof remained with the plaintiff.

Orders