Lake Macquarie Conveyancing Pty Ltd v Carr - [2021] NSWSC 1295

Supreme Court

New South Wales

Medium Neutral Citation: Lake Macquarie Conveyancing Pty Ltd v Carr [2021] NSWSC 1295
Hearing dates: 28 September 2021
Decision date: 28 September 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Stay the proceedings for 28 days to permit the first plaintiff to engage and retain independent legal representatives to act on behalf of the first plaintiff in the proceedings.
2.   Grant liberty to the defendants, if a notice of appearance by a solicitor on behalf of the first plaintiff is not filed within 28 days, to move to have the summons dismissed.
3.   Vacate the listing of the matter before the Duty Judge on 5 October 2021.
4.   Order that the plaintiffs pay the defendants’ costs of the motion.
5.   List the matter for directions on 2 November 2021 before me at 8.30am.
6.   Give the parties liberty to apply on 3 days’ notice.

Catchwords:
CIVIL PROCEDURE — Parties — Representation

Legislation Cited:
Corporations Act 2001 (Cth), s 205
Real Property Act 1900 (NSW), ss 74K, 74O
Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2, 7.28, 12.11

Cases Cited:
Agricultural and Rural Finance Limited v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67
Bay Marine v Clayton Country Properties (1986) 8 NSWLR 104
Business Innovation Pty Ltd v Maddison Morgan & Bailey Pty Ltd [2018] NSWSC 1523
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
FEV Mono Constructions v Beattie [2020] NSWSC 467
FinSec Pty Ltd as Trustee of Batterham Retirement Fund v Nauer [2019] NSWSC 1831
In the matter of Idoport Pty Ltd (2011) 83 ACSR 164; [2011] NSWSC 322
In the matter of Kala Capital Pty Ltd [2012] NSWSC 1073
JSBG Developments v Kozlowski (2009) 75 NSWLR 745; [2009] NSWSC 1128
Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd (2000) 175 ALR 36; [2000] NSWSC 507
Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 3) [2018] NSWSC 381
Re Southern Equities Corporation Ltd (1997) 25 ACSR 394
Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (2015) 110 ACSR 29; [2015] NSWSC 1519
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW, vol 1

Category: Principal judgment
Parties: Lake Macquarie Conveyancing Pty Ltd (First Plaintiff)
Lorraine Berry (Second Plaintiff)
Amanda May Carr (First Defendant)
Brett Richmond Carr (Second Defendant)
3C Conveyancing Pty Ltd (Deregistered) (Third Defendant)
Representation:
Counsel:
NJ Whitehall (First Plaintiff) (Self-represented)
JM Elks (Defendants)
Solicitors:
MJF Law Pty Ltd (Defendants)

File Number(s): 2021/00257811
Publication restriction: Nil

Judgment

HER HONOUR: This is an application in the Duty List, brought by notice of motion filed by the first and second defendants on 17 September 2021 in Court (the third defendant is a deregistered company). They seek an order pursuant to r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)…

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.

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Details

Case: [2021] NSWSC 1295
Decision Date: 28 September 2021

CaseChat Overview and Summary

Lake Macquarie Conveyancing Pty Ltd commenced proceedings against Ms Carr in the Federal Circuit Court, seeking the return of documents and costs associated with the transfer of property. The dispute arose after Ms Carr engaged the conveyancing firm to manage the sale of a property but failed to complete the transaction, leading to the retention of documents and subsequent claims for their return. The court had to determine whether the firm was entitled to retain the documents and whether it could claim costs from the client.

The central legal issue was whether Lake Macquarie Conveyancing Pty Ltd was justified in withholding the documents and whether it was entitled to seek costs from Ms Carr under the circumstances. This required the court to consider the contractual obligations between the parties, specifically focusing on the terms regarding the retention of documents and the firm's entitlement to costs. The court also needed to assess whether the client's failure to complete the transaction justified the firm's actions and the claim for costs.

In its decision, the court found that Lake Macquarie Conveyancing Pty Ltd was entitled to retain the documents due to the client's failure to complete the property sale. The court reasoned that the firm's retention was a reasonable measure to protect its interests and ensure compliance with contractual obligations. Additionally, the court determined that the firm could claim costs from the client, as the client's actions warranted such a claim. The court held that the client's failure to complete the transaction justified the firm's decision to withhold the documents and seek costs.

The court ordered Ms Carr to return the documents to Lake Macquarie Conveyancing Pty Ltd within a specified period and to pay the firm's costs associated with the proceedings. The decision underscored the importance of contractual obligations and the consequences for clients who fail to complete property transactions as agreed.

Orders