Kalloghlian v Mitry Lawyers Pty Ltd
[2022] NSWSC 845
•27 June 2022
Supreme Court
New South Wales
Medium Neutral Citation: Kalloghlian v Mitry Lawyers Pty Ltd [2022] NSWSC 845 Hearing dates: 10 June 2022, 27 June 2022 Date of orders: 27 June 2022 Decision date: 27 June 2022 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Plaintiffs to give discovery of documents in Mitry Lawyers’ Category 5, save for those concerning Mr Hetherington; costs of the plaintiff’s Notice of Motion of 16 May 2022 to be costs in the plaintiff’s Notice of Motion of 7 September 2021
Catchwords: PRACTICE AND PROCEDURE – plaintiff’s application that former solicitor’s fees be disallowed under s 99 of Civil Procedure Act 2005 – discovery on that application – discovery sought of communications with counsel during period of impugned retainer – whether privilege waived
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Category: Procedural rulings Parties: Avedis Kalloghlian (Plaintiff/Applicant)
Mitry Lawyers Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
J J Young with W Burton (Plaintiff/Applicant)
M Newton (Respondent)
TPS & Co Lawyers (Plaintiff/Applicant)
Gilchrist Connell (Respondent)
File Number(s): 2019/75533
EX TEMPORE Judgment (REVISED)
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The plaintiff seeks an order under s 99 of the Civil Procedure Act 2005 (NSW) disallowing costs he paid to his former solicitor in these proceedings, Mitry Lawyers, and requiring Mitry Lawyers to pay him $225,000 that, on 1 April 2019, and in the circumstances I set out below, he was ordered to pay the party that was then the defendant in the proceedings. That application is set down for hearing for two days on 8 and 9 August 2022.
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I am dealing with a discovery dispute in relation to this matter which arises from the plaintiff's Notice of Motion of 16 May 2022.
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The background is the party that was formerly the defendant in these proceedings, a builder, commenced proceedings against the plaintiff in the District Court in 2017 seeking unpaid progress claims of the sum of $587,000. Between October 2016 and 1 April 2019, the plaintiff retained Mitry Lawyers to act for him in those proceedings.
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A hearing date was fixed for November 2018 but was vacated on the plaintiff's application.
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A second hearing date was allocated for 19 March 2019.
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Before that second hearing date, on 5 March 2019, Mitry Lawyers circulated a proposed Technology and Construction List Statement. Three days later, on 8 March 2019, Mitry Lawyers filed a summons in this Court seeking vacation of the 18 March 2019 hearing date in the District Court and seeking to have the District Court proceedings transferred to this Court.
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On 29 March 2019, in this Court, counsel recently retained by the plaintiff told Hammerschlag J that in his view, there had been tardiness in the manner in which the proceedings had proceeded in the District Court and that the plaintiff consented to orders to the effect that:
there be judgment for the builder against the plaintiff on the builder’s District Court claim for some $587,000 plus interest;
the plaintiff pay the builder's costs provisionally assessed at $250,000; and
the plaintiff pay the builder's costs in this Court provisionally assessed at $10,000.
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His Honour also noted that the builder undertook not to raise "any type of estoppel" by reason of the judgment that his Honour had earlier entered, evidently with the intention that in the proceedings in this Court, the plaintiff could seek to agitate any claims he wished to make to recover that sum from the builder.
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The plaintiff paid those costs and also paid Mitry Lawyers' costs to 1 April 2019.
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The plaintiff's case on the s 99 application is that these costs were incurred by him as a result of serious neglect and incompetence of Mitry Lawyers, and that the costs in the District Court proceedings were, in effect, wasted.
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Obviously I have not, on this application, formed any view about the merit or otherwise of those contentions.
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Thereafter, the proceedings were continued in this Court and were evidently settled in or around November 2020 when the proceedings were dismissed.
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On the s 99 application, Mitry Lawyers originally proposed six categories of discovery. The plaintiff served a list of documents which, it is accepted, was not in proper form. When this matter was last before me on 10 June 2022, I directed that the plaintiff rectify that shortcoming by circulating lists of the particular documents in his possession that would respond to the categories proposed by Mitry Lawyers.
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There have been discussions between the parties which very lately have resulted in the dispute becoming narrowed.
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The dispute is now confined to Mitry Lawyers' Category 5 which is as follows:
“Any documents evidencing or recording any communications between the plaintiff and any barrister in relation to the Supreme Court Proceedings or District Court Proceedings between the period 1 January 2019 to 1 April 2019 …”
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The plaintiff's legal advisors circulated an Excel spreadsheet containing some 236 documents which fall within Category 5.
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Those documents relate to communications during the period of Mitry Lawyers’ retainer by the plaintiff.
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The plaintiff accepts that, by reason of the allegations made on the s 99 application, the plaintiff has acted inconsistently with the maintenance of privilege and necessarily laid open to scrutiny[1] documents in Category 5 created prior to 5 March 2019 (when the proposed List Statement was circulated) and to which Mr Mitry was a party.
1. See Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]-[29].
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However, I cannot see what distinction can be drawn between documents to which Mr Mitry was or was not a party, or documents which were created after 5 March 2019.
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Mr Newton, for Mitry Lawyers, accepts that privilege has not been waived in relation to any documents to which Mr Mitry’s successor, Mr Hetherington, was a party.
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For those reasons, my conclusion is that the plaintiff should discover all the Category 5 documents in the Excel spreadsheet which I earlier marked as Exhibit B, apart from those to which Mr Hetherington was a party.
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As to the question of costs, Mr Newton points out the primary relief sought by the plaintiff was that he not be required to give any discovery. As a result of the manner in which I have managed these proceedings, the plaintiff has now given discovery but has established a claim for privilege in relation to some documents.
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Each party has had some measure of success, and sensibly the parties have – albeit very recently – narrowed the issues between them.
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On reflection, the appropriate order to make in relation to the motion of 16 May 2022 is that the costs of that motion be costs in the motion of 7 September 2021.
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Endnote
Decision last updated: 27 June 2022
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