Lawrence Lin v Ian Borrowdale - [2011] NSWCA 65

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lawrence Lin & Anor v Ian Borrowdale & Ors [2011] NSWCA 65
Hearing dates: 2nd March 2011
Decision date: 23 March 2011
Before: Macfarlan JA at [1]
Young JA at [2]
Whealy JA at [6]
Decision:
(1) Set aside Order 3 made by the third respondent on 17 th July 2009, as follows:
"The Court directs Mr Lawrence L Lin of Accentro Legal (or other persons at that firm) pay to solicitors for the plaintiff money held on behalf of the defendant in part payment of the verdict, but not to otherwise dispose of the money within 28 days."
(2) Set aside the order of the third respondent made on 21 st December 2009, dismissing the applicant's application to vary Order 3 made by the third respondent on 17 th July 2009
(3) Order that the decision of the third respondent made on 21 st December 2009 granting Order 1 of the first respondent's Notice of Motion filed on 22 nd September 2009 be set aside
(4) Order that the following orders made by the third respondent on 21 st December 2009 be set aside:
(a) The order that the applicant pay the first respondent's costs of the Notice of Motion filed on 18 th December 2009 on an indemnity basis;
(b) That the applicants pay the first respondent's costs of the Notice of Motion filed on 22 nd September 2009 on an indemnity basis; and
(c) That the first applicant pay the first respondent's costs of 11 th September 2009, 30 th October 2009, 5 th November 2009, 7 th December 2009 and 17 th December 2009 on an indemnity basis.
(5) The first respondent is to pay the applicant's costs of this Summons, and each of the proceedings in the District Court of New South Wales involving the Notice of Motion filed by the applicant in the District Court of New South Wales on 18 th December 2009, and the first respondent's Notice of Motion filed in the District Court of New South Wales on 22 nd September 2009.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - CIVIL - Power of District Court to make order that 3rd party hand over monies in trust account - solicitor's undertaking - limitations on garnishee power - limitations on injunction power under s 46 District Court Act 1973 - limitations on implied power to make freezing order - interim asset preservation orders - contempt of court - void order - no power to refer contempt where order a nullity.
Legislation Cited: Supreme Court Act 1970 (NSW) s…

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 Lawrence Lin v Ian Borrowdale

Details

AGLC: Lawrence Lin v Ian Borrowdale [2011] NSWCA 65
Case: [2011] NSWCA 65
Decision Date: 23 March 2011

CaseChat Overview and Summary

In *Lawrence Lin v Ian Borrowdale*, the Court of Appeal of New South Wales considered an appeal concerning orders made by the District Court, which had directed a third party, Mr Lin, to pay monies held in trust to the solicitor for the plaintiff, Mr Borrowdale, in part satisfaction of a verdict. The dispute also involved applications to vary and set aside these orders, as well as costs orders made on an indemnity basis.

The primary legal issues before the Court of Appeal were whether the District Court possessed the power to make the order directing Mr Lin to hand over trust monies, and whether the court had the authority to make such an order under its garnishee powers, injunction powers pursuant to s 46 of the *District Court Act 1973* (NSW), or an implied power to make a freezing order. The court also considered the validity of orders made in relation to contempt proceedings where the underlying order was alleged to be a nullity.

The Court of Appeal reasoned that the District Court lacked the statutory power to make the order requiring Mr Lin, a third party, to pay monies held in trust to the plaintiff's solicitor. The court found that the order was not a valid exercise of the court's garnishee or injunction powers, nor was there an implied power to make such an asset preservation order in these circumstances. Consequently, the order directing the payment of trust monies was considered void. The court further held that if an order is a nullity, subsequent proceedings, including those related to contempt or costs, based on that void order are also invalid.

The Court of Appeal ordered that the District Court's order of 17 July 2009, directing Mr Lin to pay monies held on behalf of the defendant, be set aside. Further, the court set aside the subsequent order of 21 December 2009, which dismissed Mr Lin's application to vary the earlier order, and also set aside various costs orders made on an indemnity basis. The first respondent, Mr Borrowdale, was ordered to pay Mr Lin's costs of the appeal and certain proceedings in the District Court.

Orders

Orders of the court

(1) Set aside Order 3 made by the third respondent on 17 th July 2009, as follows:

"The Court directs Mr Lawrence L Lin of Accentro Legal (or other persons at that firm) pay to solicitors for the plaintiff money held on behalf of the defendant in part payment of the verdict, but not to otherwise dispose of the money within 28 days."

(2) Set aside the order of the third respondent made on 21 st December 2009, dismissing the applicant's application to vary Order 3 made by the third respondent on 17 th July 2009

(3) Order that the decision of the third respondent made on 21 st December 2009 granting Order 1 of the first respondent's Notice of Motion filed on 22 nd September 2009 be set aside

(4) Order that the following orders made by the third respondent on 21 st December 2009 be set aside:

(a) The order that the applicant pay the first respondent's costs of the Notice of Motion filed on 18 th December 2009 on an indemnity basis;

(b) That the applicants pay the first respondent's costs of the Notice of Motion filed on 22 nd September 2009 on an indemnity basis; and

(c) That the first applicant pay the first respondent's costs of 11 th September 2009, 30 th October 2009, 5 th November 2009, 7 th December 2009 and 17 th December 2009 on an indemnity basis.

(5) The first respondent is to pay the applicant's costs of this Summons, and each of the proceedings in the District Court of New South Wales involving the Notice of Motion filed by the applicant in the District Court of New South Wales on 18 th December 2009, and the first respondent's Notice of Motion filed in the District Court of New South Wales on 22 nd September 2009.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lawrence Lin & Anor v Ian Borrowdale & Ors [2011] NSWCA 65
Hearing dates:	2nd March 2011
Decision date:	23 March 2011
Before:	Macfarlan JA at [1] Young JA at [2] Whealy JA at [6]
Decision:	(1) Set aside Order 3 made by the third respondent on 17 th July 2009, as follows: "The Court directs Mr Lawrence L Lin of Accentro Legal (or other persons at that firm) pay to solicitors for the plaintiff money held on behalf of the defendant in part payment of the verdict, but not to otherwise dispose of the money within 28 days." (2) Set aside the order of the third respondent made on 21 st December 2009, dismissing the applicant's application to vary Order 3 made by the third respondent on 17 th July 2009 (3) Order that the decision of the third respondent made on 21 st December 2009 granting Order 1 of the first respondent's Notice of Motion filed on 22 nd September 2009 be set aside (4) Order that the following orders made by the third respondent on 21 st December 2009 be set aside: (a) The order that the applicant pay the first respondent's costs of the Notice of Motion filed on 18 th December 2009 on an indemnity basis; (b) That the applicants pay the first respondent's costs of the Notice of Motion filed on 22 nd September 2009 on an indemnity basis; and (c) That the first applicant pay the first respondent's costs of 11 th September 2009, 30 th October 2009, 5 th November 2009, 7 th December 2009 and 17 th December 2009 on an indemnity basis. (5) The first respondent is to pay the applicant's costs of this Summons, and each of the proceedings in the District Court of New South Wales involving the Notice of Motion filed by the applicant in the District Court of New South Wales on 18 th December 2009, and the first respondent's Notice of Motion filed in the District Court of New South Wales on 22 nd September 2009. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - CIVIL - Power of District Court to make order that 3rd party hand over monies in trust account - solicitor's undertaking - limitations on garnishee power - limitations on injunction power under s 46 District Court Act 1973 - limitations on implied power to make freezing order - interim asset preservation orders - contempt of court - void order - no power to refer contempt where order a nullity.
Legislation Cited:	Supreme Court Act 1970 (NSW) s…