In the matter of Rediform Contracting Pty Ltd

[2017] NSWSC 487

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Rediform Contracting Pty Ltd [2017] NSWSC 487
Hearing dates:	19 April 2017
Date of orders:	19 April 2017
Decision date:	19 April 2017
Before:	Gleeson JA
Decision:	(1) Grant leave to Mr Roser to file in Court a notice of ceasing to act for the plaintiff, Rediform Contracting Pty Ltd
Catchwords:	PROCEDURE – ceasing to act – leave to file a notice of ceasing to act – no notice of intention – application made in court on date of hearing – where client has failed to provide funds for costs and failed to provide adequate instructions to allow solicitors to comply with the terms of their retainer – whether appropriate to dispense with requirements of Uniform Civil Procedure Rules r 18.1 under Civil Procedure Act 2005 (NSW), s 14.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 14 Uniform Civil Procedure Rules, r 7.29, 18.1
Cases Cited:	Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 Underwood Son & Piper v Lewis [1894] 2 QB 306
Category:	Procedural and other rulings
Parties:	Rediform Contracting Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant)
Representation:	Counsel: Mr AG Martin (Defendant)   Solicitors: Moisson Lawyers (Plaintiff)
File Number(s):	2016/385949

Judgment

1. GLEESON JA: Before the Court for hearing this afternoon is an application by the plaintiff, Rediform Contracting Pty Ltd (Rediform), to set aside a statutory demand dated 7 December 2016 served by the defendant, the Chief Commissioner of State Revenue. Application is made by the solicitor for the plaintiff for leave to withdraw.

2. The affidavit of Mr Raymond Roser provides the following explanation of the background to that application. The solicitor first received instructions on 22 March 2017 to appear on behalf of Rediform, in circumstances where Rediform's previous solicitor, Mr Jeffrey Brown of Matthews Folbigg Pty Ltd had filed a notice of ceasing to act on 19 January 2017.

3. On 22 March 2017, Rediform sought an adjournment of the winding-up application, on the basis that Mr Roser was not in a position to advance its case on that day and was unable to retain counsel in the short period available to him after he was retained by Rediform. That application was granted by Black J and directions were given for the preparation of the matter for hearing. The matter was fixed for hearing today for not more than two hours.

4. Mr Roser said in his affidavit that he informed the director of Rediform of the outcome of the hearing on 22 March 2017 on that day and sought further instructions. Mr Roser again sought further instructions on 24, 29 and 30 March 2017 from the director of Rediform and also on 30 March 2017 from the accountant to Rediform. On 31 March 2017, Mr Roser again sought further instructions from Rediform. He said that, ‘no instructions sufficient to file evidence were provided to him’. On 4 April 2017, Mr Roser informed Rediform that since he had not received funds nor instructions as requested, he would cease to act unless he received urgent instructions. No response was received.

5. Uniform Civil Procedure Rules 2005 (NSW), r 7.29 relevantly provides:

7.29 Withdrawal of solicitor

(1)   A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(2)   Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change:

(a)   in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or

(b)   in any other case, at least 7 days before doing so.

(3)   Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4)   A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

6. As a notice of intention has not been served, Mr Roser seeks leave to file a notice of ceasing to act for Rediform. That application is not opposed by the defendant. Notice may be dispensed with, if the Court is satisfied that the solicitor has good cause for immediate termination of the retainer or is unable to comply with the notice requirement.

7. Good cause for termination of the retainer includes the client's failure to provide funds for costs and disbursements and where the client prevents the solicitor from properly carrying out the duties required by the retainer: see Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 and Underwood Son & Piper v Lewis [1894] 2 QB 306 at 314. Both of these grounds apply here. Rediform has failed to provide funds for costs and has failed to provide instructions to permit the solicitor to file further evidence and prepare and file submissions in support of the application to set aside the statutory demand.

8. The application for leave to withdraw should have been made by a notice of motion: UCPR r 18.1; however, s 14 of the Civil Procedure Act 2005 (NSW) provides that the Court may dispense with any requirement of the rules if satisfied that it is appropriate to do so in the circumstances of the case. Here, there is evidence that the solicitor has communicated his intention to cease to act to the director of Rediform and that the director has responded that he understands that the solicitor needs to cease to act.

9. In the circumstances, I am prepared to dispense with the need for the filing of the notice of motion seeking leave to withdraw. Notwithstanding the late time of the application to withdraw relative to today's hearing, I am satisfied that the solicitor is justified in ceasing to act. He has not been dilatory in attempting to obtain instructions and his request for funds for costs has been met with no response.

10. Accordingly I make the following order:

1. Grant leave to Mr Roser to file in court a notice of ceasing to act for the plaintiff, Rediform Contracting Pty Limited.

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Decision last updated: 28 April 2017