Myall Coast Developments Pty Ltd v Kyloe Pty Ltd

[2008] FCA 585

FEDERAL COURT OF AUSTRALIA

Myall Coast Developments Pty Ltd v Kyloe Pty Ltd [2008] FCA 585

MYALL COAST DEVELOPMENTS PTY LTD v KYLOE PTY LTD, IMPACT DESIGN ACCESSORIES PTY LTD, ROBERT BRUCE MORPETH, THERESE MORPETH and KEVIN MCCANN

NSD 325 OF 2006

BUCHANAN J
29 APRIL 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 325 OF 2006

BETWEEN: MYALL COAST DEVELOPMENTS PTY LTD
Applicant

AND:

KYLOE PTY LTD
First Respondent

IMPACT DESIGN ACCESSORIES PTY LTD
Second Respondent

ROBERT BRUCE MORPETH
Third Respondent

THERESE MORPETH
Fourth Respondent

KEVIN MCCANN
Fifth Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	29 APRIL 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 325 OF 2006

BETWEEN: MYALL COAST DEVELOPMENTS PTY LTD
Applicant

AND:

KYLOE PTY LTD
First Respondent

IMPACT DESIGN ACCESSORIES PTY LTD
Second Respondent

ROBERT BRUCE MORPETH
Third Respondent

THERESE MORPETH
Fourth Respondent

KEVIN MCCANN
Fifth Respondent

JUDGE:	BUCHANAN J
DATE:	29 APRIL 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This interlocutory judgment deals with a notice of motion brought by the applicant seeking an order that the applicant’s former solicitors, Rowlandson & Company, be directed to deliver up all files, documents, deeds and the like held by them in relation to the present proceedings.  I have indicated to Mr Confos, who appeared today for the applicant, that I would dismiss the notice of motion.  Mr Loofs, who appeared for Rowlandson & Company, solicitors, has asked for costs. 

2. It appears sufficiently from the discussion which I have had with Mr Confos, that Rowlandson & Company assert a lien over the documents in question because fees claimed by them for work done on behalf of the applicant have not been paid.  So much is not in dispute.  I can see no basis upon which this Court should become involved in the dispute between the applicant and its former solicitors about the justification for the fees which have been claimed.  If the documents which are sought are relevant for the present proceedings they may be subpoenaed in the ordinary way as documents may be subpoenaed from other third parties.  Any question of access, if it is resisted, will be dealt with at the time that a response is made to the subpoena. 

3. One approach may be, although it is a matter which would require attention at the time and in the light of the circumstances then disclosed, for the applicant to pay money into court so that the substance of the lien is protected and the parties to that dispute may then contest the claim for fees in an appropriate forum, which in my view is not in this Court in the present proceedings.  Those procedural issues are ones which will require attention as and when the occasion demands.  They require no further attention at the moment. 

4. I think the attempt to secure the documents in the present proceedings by the notice of motion which was filed was unjustified.  It seems to me on ordinary principles that Rowlandson & Company should be protected in the normal way in relation to their costs.  The notice of motion is dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       29 April 2008

Counsel for the Applicant:	Mr N A Confos
Solicitor for the Applicant:	Humphreys & Feather
Counsel for the First Respondent:	Mr J J Loofs
Solicitor for the First Respondents:	Rowlandson & Co
Solicitor for the Second to Fourth Respondents:	Tucker & Cowen

Date of Hearing:	29 April 2008
Date of Judgment:	29 April 2008