Maxwell-Smith v S & E Hall Pty Ltd

[2013] NSWCA 397

Court of Appeal

New South Wales

Case Title:

Maxwell-Smith v S & E Hall Pty Ltd

Medium Neutral Citation:

[2013] NSWCA 397

Hearing Date(s):

25 November 2013

Decision Date:

28 November 2013

Before:

Sackville AJA

Decision:

1. The applicants' notice of motion is dismissed.

2. No order as to costs.

[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:

PROCEDURE - application for referral to legal practitioner on Pro Bono Panel - assistance provided pursuant to previous referral - whether special reasons demonstrated pursuant to UCPR, r 7.36(2A) - application refused

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 7.36

Cases Cited:

Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
Maxwell-Smith v Hall [2012] NSWCA 205
Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825; 233 ALR 81

Category:

Interlocutory applications

Parties:

Inge Maxwell-Smith (First Applicant)
Eugene Maxwell-Smith (Second Applicant)
S & E Hall Pty Ltd (First Respondent)
Hugo Patrick White (Second Respondent)

Representation

- Solicitors:

Solicitors:
First Applicant in person (Applicants)
D Shankar (Rankin Ellison Lawyers) (First Respondent)
TC Blyth (K & L Gates) (Second Respondent)

File Number(s):

2013/155581

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Kearns DCJ

- Date of Decision: 

09 May 2013

- Citation:

Maxwell-Smith v S & E Hall Pty Ltd (District Court of New South Wales, 9 May 2013, unreported)

- Court File Number(s):

2010/292575

JUDGMENT

1. HIS HONOUR: By a Notice of Motion filed on 4 November 2013, the applicants, Inge Maxwell-Smith and Eugene Maxwell-Smith, seek referral for pro bono assistance pursuant to the Uniform Civil Procedure Rules 2005 ("UCPR"), r 7.36, in connection with their appeal against a decision of Kearns DCJ of 9 May 2013. The applicants also seek directions that they be assisted by the Court in preparing the Appeal Books and that Court fees be postponed or waived in respect of that appeal. The respondents do not oppose the application.

Background

1. The proceedings arise out a contract for the building of a house on the applicants' land at Tura Beach. The first respondent, S & E Hall Pty Ltd ("Hall"), was the building contractor. The second respondent, Hugh White ("Mr White"), was the solicitor retained by Mr and Mrs Maxwell-Smith on their purchase of the Tura Beach property. Hall's alleged breaches of the building contract, and Mr White's alleged breach of his retainer and his fiduciary duties, have been the subject of protracted litigation, involving a multiplicity of applications to this Court, the Consumer Claims Tribunal, the District Court, the Federal Court, the Supreme Court and the High Court.

2. The background and part of the…