Holborow v Macdonald Rudder
[2000] WASC 135
•29 MAY 2000
HOLBOROW & ORS -v- MACDONALD RUDDER [2000] WASC 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 135 | |
| Case No: | CIV:2271/1999 | 28 APRIL 2000 | |
| Coram: | WHEELER J | 29/05/00 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' application dismissed Defendant's application dismissed | ||
| PDF Version |
| Parties: | VALERIE HOLBOROW ROBERT BOONA COLIN COSMOS KEVIN COSMOS JANICE COSMOS MARY COSMOS DANNY COOPER DOREEN WESCOMBE MARGARET BOONA BARBARA SINCLAIR GAIL SINCLAIR DORRIE WALLY MACDONALD RUDDER |
Catchwords: | Practice and procedure Application for summary judgment pursuant to the Rules of the Supreme Court, O 16 Unexplained delay Claim lacking foundation Power to order summary judgment Turns on own facts Trusts Trustee Solicitor and client Duty of Trustee Duty to account Discovery in aid of account No evidence of wilful default Turns on own facts |
Legislation: | Rules of the Supreme Court, O 16 |
Case References: | Webster v Lampard (1993) 177 CLR 598 Anderson v Effexseven (1999) 10 ANZ Insurance Cases 61-424 (WASCVC) Baldry v Jackson (1976) 2 NSWLR 415 Bartlett v Barclays Trust Co (No 2) [1980] Ch 539 Clarke v Australia Guarantee Corp, unreported; SCt of WA (Sanderson M); Library No 980484; 27 August 1998 Cramb v Goodwin (1919) 35 TLR 447 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994 Gava v Grljusich [1990] WASC 13 Kemp v Goldberg [1987] 36 Ch D 505 Levy v Goldhill [1917] 2 Ch 297 Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995 Oh Ho & Ors v Minister for Immigration and Ethnic Affairs (1987) 72 ALR 43 Re City Equitable Fire Insurance Co [1925] 1 Ch 407 Re Gyhon, Allen v Taylor [1885] 29 Ch D 834 Re Tebbs [1976] All ER 858 Re Young and Harston's Contract [1885] 31 Ch D 168 Sleight v Lawson (1857) 3 K & J 292 Water Authority of Western Australia v Ail Holdings Pty Ltd (No 2) (1992) 10 WAR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- ROBERT BOONA
COLIN COSMOS
KEVIN COSMOS
JANICE COSMOS
MARY COSMOS
DANNY COOPER
DOREEN WESCOMBE
MARGARET BOONA
BARBARA SINCLAIR
GAIL SINCLAIR
DORRIE WALLY
Plaintiffs
AND
MACDONALD RUDDER
Defendant
Catchwords:
Practice and procedure - Application for summary judgment pursuant to the Rules of the Supreme Court, O 16 - Unexplained delay - Claim lacking foundation - Power to order summary judgment - Turns on own facts
(Page 2)
Trusts - Trustee - Solicitor and client - Duty of Trustee - Duty to account - Discovery in aid of account - No evidence of wilful default - Turns on own facts
Legislation:
Rules of the Supreme Court, O 16
Result:
Plaintiffs' application dismissed
Defendant's application dismissed
Representation:
Counsel:
Plaintiffs : Mr M J McCusker QC & Mr B W Ashdown
Defendant : Mr M J Buss QC & Mr G F McGrath
Solicitors:
Plaintiffs : Ilbery Barblett
Defendant : Tottle Christensen
Case(s) referred to in judgment(s):
Webster v Lampard (1993) 177 CLR 598
Case(s) also cited:
Anderson v Effexseven (1999) 10 ANZ Insurance Cases 61-424 (WASCVC)
Baldry v Jackson (1976) 2 NSWLR 415
Bartlett v Barclays Trust Co (No 2) [1980] Ch 539
Clarke v Australia Guarantee Corp, unreported; SCt of WA (Sanderson M); Library No 980484; 27 August 1998
Cramb v Goodwin (1919) 35 TLR 447
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Gava v Grljusich [1990] WASC 13
(Page 3)
Kemp v Goldberg [1987] 36 Ch D 505
Levy v Goldhill [1917] 2 Ch 297
Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995
Oh Ho & Ors v Minister for Immigration and Ethnic Affairs (1987) 72 ALR 43
Re City Equitable Fire Insurance Co [1925] 1 Ch 407
Re Gyhon, Allen v Taylor [1885] 29 Ch D 834
Re Tebbs [1976] All ER 858
Re Young and Harston's Contract [1885] 31 Ch D 168
Sleight v Lawson (1857) 3 K & J 292
Water Authority of Western Australia v Ail Holdings Pty Ltd (No 2) (1992) 10 WAR 233
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1 WHEELER J: I have before me the plaintiffs' chamber summons seeking orders that the defendant account to the plaintiffs for all trust property received by the defendant on behalf of the plaintiffs, and for discovery in aid of such account, together with a defendant's chamber summons seeking an order that Williams & Co be restrained from acting for the plaintiffs and for leave to apply for summary judgment pursuant to O 16 of the Rules of the Supreme Court and for summary judgment.
The Application to Restrain Williams & Co
2 I deal first with the application to restrain Williams & Co from acting for the plaintiffs. Since that application was brought, the plaintiffs have instructed other solicitors. I am advised that no concession is made that it was improper for Williams & Co to act. The plaintiffs have taken this action, apparently on advice, because, I am informed, they considered it preferable to incurring costs involved in opposing the application. Since this is a matter in which the defendant solicitors and Williams & Co have each made very serious allegations about the conduct of the other, it is in my view, wise that the plaintiffs be represented by a firm other than Williams & Co and that the defendant be represented by solicitors, as they are, rather than seeking to defend itself. This application would simply fall away, were it not that the defendant seeks its costs of the application.
3 I am not in a position on the affidavit material before me to determine what substance there may be in the allegations made against the firm Williams & Co. I have not heard from that firm, and it has not been sought to have Mr Williams, who has sworn a number of affidavits relevant to the application, cross-examined. In those circumstances, it is my view that it would be inappropriate for me to make any order in respect of the costs of the application to restrain that firm from acting.
The Application for Account - the Writ
4 So far as the other applications are concerned, it seems to me that the convenient course is to turn first to examine the writ and statement of claim, and then to consider the extent to which the affidavit material before me supports the allegations made in those documents.
5 The writ was issued on 16 November 1999. The indorsement alleged that the defendant rendered accounts to the plaintiffs by virtue of which it represented to the plaintiffs that it had provided legal services to the plaintiffs to prepare and conduct certain Federal Court proceedings when in fact the defendant had not done so. There was an allegation in respect
(Page 5)
- of a retainer agreement, which it is not necessary to deal with now. It was further alleged that the defendant paid all its accounts for legal fees and disbursements from the plaintiffs' trust moneys without obtaining instructions from the plaintiffs to do so. It was then alleged that despite requests and demands, the defendant had failed and refused to account to the plaintiffs for money and benefits received by it on behalf of the plaintiffs, or to provide to the plaintiffs an itemised bill of costs in a taxable form.
6 I should note that the matter came before me on 17 November 1999 when the plaintiffs sought what was described as an injunction, but would appear to have been an order that the defendant provide the plaintiffs with certain types of bills of costs. On that occasion, the oral argument addressed to me on behalf of the plaintiffs was broadly to the effect that the plaintiffs had received some bills of costs from the defendants - the impression created by the argument was that there had only been a few such bills - but had refused to provide bills which would account for the very substantial sums apparently expended by the defendant. It was further put to me that itemised bills of costs were required so that the plaintiffs could see what work the defendant claimed to have done in relation to the Federal Court action. It was alleged that the defendant had, as it appeared to the plaintiffs' then solicitors, done very little work to prepare the Federal Court matter for trial and it was necessary for the plaintiffs to see the bills as a matter of urgency so that they would know what work it was that the defendant had claimed to have done.
7 It is no part of my function at this stage to determine the truth or otherwise of those allegations. However, it is important to note that it now appears from affidavits before me that the defendant had created and provided to the plaintiffs very detailed itemised bills of costs covering a substantial period of time and a large quantity of work. I have not performed the calculations myself, but it appears from schedules provided to me that those documents cover the greater portion, at least, of the amounts which, so far as one can tell from the affidavits before me, have been received by the defendant on behalf of the plaintiffs. Whether they cover the whole of those amounts is a matter which, in the conclusion which I have reached, it is not necessary for me to determine.
8 The writ was amended by leave pursuant to an order of Registrar Rimmer, dated 14 January 2000. The statement of claim refers to the Federal Court proceedings and asserts that in relation to those proceedings and other matters, the defendant received moneys on behalf of the plaintiffs between 1996 and 1999. It is then alleged that:
(Page 6)
- "9 As trustee for the Plaintiffs the Defendant was under a duty to:
(a) Keep proper accounts of its receipts, payments on behalf of the Plaintiffs and of all other benefits received by the Defendant and forming part of the Trust Property;
(b) Produce such account to the Plaintiffs on demand;
(c) Maintain faithful and accurate records and keep documentary evidence in support of the account;
(d) Produce such record and documents to the Plaintiffs on demand;
(e) Provide full information regarding the Trust Property to the Plaintiffs on demand; and
(f) Permit the Plaintiffs to inspect all such records and documents forming part of or pertaining to the account on demand.
10 Despite requests and demands and in breach of its duties set out in paragraph 9 above, the Defendant has failed and/or refused to:
(a) Account for all Trust Property received by it;
(b) Produce such records and documentary evidence in support of such accounts to the Plaintiffs;
(c) Provide full information regarding the Trust Property;
(d) Let the Plaintiffs inspect all documents forming part of or pertaining to the account;
(e) Provide to the Plaintiff an account of all monies kept pursuant to Section 39 of the Act;
(f) Produce its books of account to the Plaintiff pursuant to Section 36 of the Act; and
(g) Produce to the Plaintiff all or any record maintained pursuant to Section 37 of the Act."
(Page 7)
9 It can immediately be seen that the allegation that the defendant represented that it had provided legal services which were not in fact provided, has been abandoned. So far as the relief is concerned, the claim for provision of itemised bills of costs has been abandoned and the account now sought is phrased as "an account of all Trust Property received by the defendant on behalf of the plaintiffs", together with payment by the defendant to the plaintiffs of all sums found due on the taking of such an account.
10 It may be seen that there are certain difficulties with the statement of claim in its present form. The allegations of default are not clearly cross-referenced to the duties which are alleged, and are expressed rather in the form of conclusions than as statements of material fact. No particular request or demand for inspection is pleaded. However, accepting for the moment that the general nature of the claim is clear enough - that is, that the plaintiffs claim that the defendant is in breach either of its duty to keep accounts, or to give reasonable information as to the manner in which moneys received on behalf of the plaintiffs have been dealt with - I turn to consider the facts deposed to in the affidavits which might support such an allegation.
The Affidavits
11 The background to this matter is that until 3 September 1999 or thereabouts, the defendant was the solicitor on the record for the plaintiffs in certain Federal Court native title proceedings. Prior to, and during the course of those Federal Court proceedings, the defendant negotiated a number of agreements on behalf of the plaintiffs in relation to their native title claims, which resulted in the payment of money by a variety of entities to the defendant as solicitors for the plaintiffs. Some money was used by the defendant to pay outstanding legal fees and disbursements and some held on account of costs to be incurred in pursuing the Federal Court native title claim. It appears that certain sums have also been paid by the defendant direct to the plaintiffs.
12 During the course of those negotiations, the defendant caused to be incorporated for the plaintiffs a body known as the Yaburari and Coastal Mardudhnera Aboriginal Corporation ("the Corporation"). In late August, the defendant received a letter from a company trading as Barrack & Associates enclosing an authority from the Corporation requesting access to the defendant's files. There were certain difficulties with this request, since the defendant represented the plaintiffs in their individual capacities, rather than representing the Corporation, in the native title proceedings.
(Page 8)
- The defendant replied to that letter and sent a copy of its response to the plaintiffs.
13 On 30 August 1999 the defendant received a letter from Mr Williams advising that his firm had been instructed to assume the conduct of the Federal Court proceedings on behalf of the plaintiffs. Certain correspondence ensued in which the defendant advised that it took the view that Mr Williams had not filed the appropriate notices required by the Federal Court Rules and that the authority, which he had supplied to the defendant, suggested that he was entitled only to act in certain respects for the Corporation. However, these matters fairly soon resolved and the defendant delivered up its files in relation to the Federal Court proceedings to Mr Williams on about 3 September. Certain other files were not released because of difficulties with Mr Williams' instructions as perceived by the defendant and because of the defendant's view that it was its duty to retain the files until it was satisfied of those matters. It is fair to say that there was an atmosphere of urgency surrounding the correspondence concerning the files relating to the native title proceedings, since those proceedings were continuing in the Federal Court and were about to reach a critical stage. Against that background, I now summarise what appear to me to be the most relevant items of a voluminous correspondence leading up to the issue of the writ.
| 09/09/99 | Williams & Co write to defendant seeking further documents and adding, "We are otherwise instructed to request you provide a schedule detailing the monies received and disbursed by or on behalf of our clients". It is to be noted that this letter bears a heading referring only to the Federal Court actions. |
| 13/09/99 | Defendant writes to Williams & Co querying whether the latter had instructions from all of the plaintiffs; this concern was based on information from Williams & Co and from at least one of the plaintiffs. They advise that the firm's bookkeeper has been requested to provide a statement of monies received and disbursed and that "this will take a few days to issue". |
| 13/09/99 | Williams & Co write to plaintiffs acknowledging receipt of very many documents but requesting further documents and advising that they take the view that the plaintiffs' case is insufficiently |
(Page 9)
| prepared for trial and that the plaintiffs' have insufficient funds. They ask questions directed to trial preparation undertaken by the defendant and add that they are instructed "1. To again request that you provide a full accounting for all monies received and disbursed … on behalf of our clients; 2. to tax Macdonald Rudder's accounts. Please therefore provide Macdonald Rudder's bill of costs in a taxable form without delay". | |
| 13/09/99 | Further letter from Williams & Co to the defendant that they are instructed by all plaintiffs, and expressing concern at delay in release of further requested files. They add, "We otherwise look forward to receiving Macdonald Rudder's statement of all monies received and disbursed on behalf of our clients; bill of costs in a taxable form." |
| 13/09/99 | Letter from defendant to Williams & Co advising that as far as they are aware Williams & Co only act for three of the claimants in the Federal Court matter and that they are therefore unable to release the files to Williams & Co. They advise that they will reply to the first fax of September 13 shortly. |
14 [I have omitted certain correspondence which is, not surprisingly, somewhat acrimonious in tone, concerning preparation for the Federal Court matter and the question of whether that preparation had been adequate.]
|
taxable form", they are instructed to bring an application without further notice. |
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(Page 10)
| posted tonight if not collected in the meantime". |
| 17/09/99 | Williams & Co advise the defendant that Mr Thompson of the plaintiffs' accountants would "arrange a convenient time for him to inspect the balance of our clients' files held by Macdonald Rudder" and advise also that they have yet to receive "Macdonald Rudder's bill of costs in a taxable form". |
| 20/09/99 | The defendant advises Williams & Co that, in its view, for reasons of client confidentiality, it was inappropriate for anyone other than a legal practitioner to inspect the plaintiffs' files; that they would not allow Mr Thompson to investigate the files alone but might permit him to do so in the company of a legal practitioner provided they were advised of his name and qualifications so that they could satisfy themselves as to his competence. |
| 05/10/99 | Letter from defendant to Williams & Co referring to past correspondence relating to requests for "a bill of costs in taxable form". The defendant advises that it does not understand the demand. It advises that all recent accounts to the plaintiffs were itemised, and queries whether Williams & Co have actually seen copies of any itemised accounts. The question of Williams & Co's authority to act on behalf of the plaintiffs in relation to requests for taxation of accounts is raised and the defendant advises that in that respect "we will … require your specific advice that you have taken your instructions directly from the party charged". |
| 11/11/99 | By this stage it appears that Williams & Co had issued, or attempted to issue, some form of originating summons relating to taxation. They |
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| advise that they propose to withdraw that and issue proceedings instead by way of writ. They advise the defendant that the plaintiffs do not appear to have received "all your firm's invoices for legal fees and disbursements allegedly incurred" and seek copies. | |
| 15/11/99 | The defendant writes to Williams & Co advising that all bills of costs were posted to each of the plaintiffs, V Holborow and C Cosmos on whose behalf the request was made. The defendant suggests to Williams & Co that the making of demands of the kind made in relation to bills which have not been seen by Williams & Co appears to them to be unprofessional. It suggests that in the absence of any dispute regarding the actual bills rendered, there is no legitimate issue about them in existence. |
16 It was the day following this letter that the writ issued, and the day following that on which the argument to which I have previously referred took place before me.
17 It may be seen from the summary of the correspondence that following 16 September, when the trust account statements were posted and the general account statements were said to be available, there were no further requests made on behalf of the plaintiffs for statements of moneys received and disbursed on behalf of the plaintiffs. Rather, the focus of the correspondence shifted to the question of whether certain unidentified files could be inspected by an accountant (a matter which seems not to have been pursued) and to the issue of the provision of bills of costs "in a taxable form". Certainly the argument before me revolved almost entirely around the question of bills of costs and the identification of what work had been done by the defendant in preparation for trial in the Federal Court. A reasonable firm in the position of the defendant would by that stage, in my view, have apprehended that what the plaintiffs sought from it, was an account of work done and itemised bills of costs detailing that work. It is apparent that the defendant took that view, and that it took the view that it had in fact provided such itemised accounts. Subsequently, it appeared that the defendant was correct, or largely correct, in its assertions that relevant bills had been provided and the focus
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- of the plaintiffs' inquiry again shifted. This came about, so far as I can discern, as follows.
18 On 23 November 1999, Williams & Co wrote to the defendant asking for documents evidencing any costs agreement or authorisation to draw from moneys held in trust for the plaintiffs. They again dealt with questions of taxation of costs and renewed their requests for copies of all accounts rendered to the plaintiffs, undertaking to pay photocopying of expenses of no more than 25 cents per page. It appears that some dispute about photocopying expenses ensued, although materials relating to that are not before me and I gleaned that impression from submissions made in this matter.
19 At some time prior to 16 December, there came into the possession of Williams & Co a very large bundle of copies of itemised accounts which had been provided to Ms Holborow, one of the plaintiffs. This can be inferred from the fact that on 16 December 1999 in an affidavit prepared by Williams & Co, Ms Holborow annexed to her affidavit almost 200 pages of copy accounts. These appear from materials later filed in this matter to represent more than half of the itemised accounts created by the defendant. Ms Holborow deposed that the annexed accounts were the only ones that she and the other plaintiffs could find but deposed also to her belief that other accounts had been sent which had been misplaced. These accounts are itemised in the usual form, with a date, a short description of the work done, a note of the time taken and of the time charged for, and a cost figure assigned to each item. There is a schedule of administrative charges and disbursements attached to many of them also which details the date, the nature of the administrative task and the charge made for it. It can be inferred from this affidavit that itemised accounts had been provided in relation to the greater part, if not all, of the work undertaken by the defendants in relation to the native title claim.
20 Unfortunately, as appears from the tone of the correspondence, and from the submissions made before me last November, relations between the defendant and Williams & Co had by then almost entirely broken down. For reasons which are not clear, it was not until 11 April that the present solicitors instructed by the plaintiffs received from solicitors instructed by the defendant, copies of 91 bills (over 300 pages in all) rendered by the defendant to, inter alia, the plaintiffs in this action. In the meantime, the writ had been amended so that the statement of claim was in the general form to which I have already referred.
(Page 13)
21 The copy bills provided by the defendant's solicitors have been analysed by the plaintiffs' solicitors and at approximately 5.00 pm on Wednesday, 26 April, (ie less than 48 hours prior to the hearing of this matter scheduled for 28 April) the plaintiffs' solicitors sent to the defendant's solicitors a number of further requests for specific information, amounting to some 17 items. The outline of submissions in this matter refer to some 19 matters in relation to which it is said that there are discrepancies between the trust account ledgers and bills received, or between them and other documents, or in relation to which there is a lack of clarity in the documents now in possession of the plaintiffs' solicitors, and it is also alleged that there has been no accounting in respect of benefits which may have been received by way of loyalty or reward incentive programs such as Frequent Flyer and that there has been no general provision of vouchers and reconciliation of fees and disbursements across all files.
The Plaintiffs' Application - Conclusions
22 The theme which was developed by Mr McCusker QC on behalf of the plaintiffs was that the plaintiffs needed a complete statement of all sums received on their behalf in order to understand the trust property position in full and that what the plaintiffs really sought at this stage was a one or two page statement setting out the total receipts and the manner in which they had been disbursed, together with, to the extent that it was necessary after the provision of such a statement, an explanation of the specific queries raised in the outline of submissions.
23 The defendant's submission was to the effect that while a trustee has an obligation to keep proper accounts and to answer reasonable inquiries, the inquiries made of them to date had been made in such a general way that it was difficult to know precisely what was sought and that the defendant was, and had at all times been, ready to respond promptly and diligently to any request which might be made of them for information.
24 In my view, the materials in the affidavits before me fall a long way short of establishing any failure on the part of the defendant to respond to reasonable inquiries or to provide reasonable information. The impression which is gained on a fair reading of the correspondence up to 16 September is that general requests were made for an account of all moneys received and disbursed on behalf of the plaintiffs; that the defendant responded to this request by making available its trust account statements and offers to make available its general account statements; and that there was never at any subsequent time, prior to 26 April, a
(Page 14)
- suggestion by the plaintiffs that that information was not what had been sought, or was not adequate for any particular purpose.
25 Subsequent to 17 September, any reasonable reader of the correspondence sent on behalf of the plaintiffs to the defendant would have gained the impression that what the plaintiffs required were itemised bills of costs. The defendant maintains, and has always maintained, that it had provided itemised bills of costs, in respect of all moneys disbursed on behalf of the plaintiffs. There is no material before me from which I can infer that the defendant has failed to do so. Rather, the material that is available demonstrates that many detailed itemised bills were provided to the plaintiffs and that they represented either the whole or the greater part of the moneys disbursed on behalf of the plaintiffs by the defendant.
26 Without dealing with each individual query, it appears to me that, broadly, the specific issues raised in the plaintiffs' outline of submissions dated 27 April, are matters in respect of which it would be appropriate for the defendant to provide information pursuant to its duty as trustee of those funds. However, those issues relate to work performed in respect not only of the native title proceedings, but a number of other related sets of instructions over a substantial period of time, and it would, in my view, be wholly unreasonable to expect the defendant to respond to those matters between 5.00 pm on Wednesday, 26 April, and the date of hearing of these applications, particularly in circumstances where it was necessary for it to prepare for the application.
27 It is my view that there is no evidence before me which would establish that the defendant has failed in any duty to keep proper accounts, to produce them to the plaintiffs as required, or to provide the plaintiffs with information relating to the trust property. I would dismiss the plaintiffs' claim.
Summary Judgment Application
28 So far as the defendant's application for summary judgment is concerned, the defendant has not provided any evidence to justify or explain the delay in making this application. Unexplained delay is normally fatal to such an application. I have given consideration to the submission made by the defendant that, even having regard to the delay, this claim is so lacking in foundation that it should be simply be "put out of its misery".
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29 On the materials before me there is some merit in that submission. However, I am conscious of several things. First, the correspondence plainly does not reflect the entirety of the dealings between the plaintiffs' former solicitors and the defendant. Not only were there obviously a number of telephone conversations, but also some of the correspondence appears not to have been provided in the affidavits before me. Further, the plaintiffs have only very recently received all of the itemised accounts from the defendant and say that even at this stage they are able to point to certain discrepancies and deficiencies, so that it is possible that a more leisurely analysis may reveal a failure to account at all in some respect. Finally, the matter of the apparent failure to provide the general ledger remains unexplained. At present it appears that it is likely to have been no more than an oversight - certainly no other explanation was suggested by the plaintiffs - but it is a matter which may be revisited in future.
30 It seems to me not unlikely that the unfortunate relationship between Williams & Co and the defendant may have led to the presentation of irrelevant material and perhaps omission of relevant material, and it is clear that the plaintiffs' present solicitors have had but little time to consider the matter. Having regard to the exceptional caution with which the power to order summary judgment should be exercised (Webster v Lampard (1993) 177 CLR 598), in my view it would not be appropriate to do so in this case.
31 Notwithstanding that I do not grant the defendant's application for summary judgment in this matter, I would express my hope that as the plaintiffs and the defendant are now being represented by independent and objective solicitors with no apparent interest in the dispute as it has arisen to date, and are being advised by competent senior counsel, they will jointly be able to arrive at a resolution of this matter. On its face, there are aspects of the correspondence which suggest a regrettable lack of the frankness and courtesy which should characterise dealings between legal practitioners, which have impeded a sensible resolution of the matter. I do not seek to apportion blame for the acrimonious and uncooperative tone which developed, although, as I have already noted, a certain lack of clarity in requests from the plaintiffs' previous solicitors may have precipitated some initial difficulties.
32 It appears to me that the appropriate orders are that the applications by both the plaintiffs and the defendant should be dismissed. However, the bulk of the court time and the bulk of the affidavit material was related to the application brought by the plaintiffs and it is therefore appropriate, in my view, that the defendant have the costs of the applications.
2