Provident Capital Ltd v Anderson (No 3) - [2013] NSWSC 705

Supreme Court

New South Wales

Medium Neutral Citation: Provident Capital Ltd v Anderson & Ors (No 3) [2013] NSWSC 705
Hearing dates: 30 May 2013
Decision date: 30 May 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Costs awarded against a solicitor.

Catchwords: COSTS - Legal practitioner - serious misconduct - preparing letter for client to show third parties advising that Court orders void.
Legislation Cited: - Civil Procedure Act 2005
- Farm Debt Mediation Act 1994
- Supreme Court Act 1981 (UK)
Cases Cited: - Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155
- Provident Capital Ltd v Anderson [2012] NSWSC 525
- Ridehalgh v Horsefield [1994] Ch 205
- Waller v Hargraves Secured Investments Ltd [2012] HCA 4; 245 CLR 311
- Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477
Category: Interlocutory applications
Parties: Provident Capital Limited (in liq)(R&M app) (Plaintiff)
Ian Maxwell Anderson (First Defendant)
Sonya Monica Coghlan (Second Defendant)
IASM Holding Pty Ltd (Third Defendant)
Representation: Counsel:
J. Hynes (Plaintiff)
In person (First and Second Defendants)
R. Savage (Sol) (Law Society)
Solicitors:
Henry Davis York (Plaintiff)
Fox Legal (Third Defendant)

File Number(s): 2010/159025

ex tempore Judgment

This is an application by the plaintiff, Provident Capital Limited ("Provident"), to have the first defendant's solicitor, Mr Nicholas Coren, pay the costs of a notice of motion it brought seeking an injunction preventing the first defendant, Mr Ian Anderson, from entering upon property in respect of which it had an order for possession in its favour.

Background

Some time in 2006 Mr Anderson granted to Provident a mortgage over property he owned, known as Barry Station (the "Property"). Barry Station appears to be a large rural property near or via Nundle. The mortgage secured repayments of a substantial amount advanced by Provident. Apparently a goods mortgage was also granted.

As I understand it, in 2009 Mr Anderson went into default. In 2010 Provident commenced these proceedings seeking, inter alia, an order for possession of the Property. In April 2011 an injunction was granted preventing Mr Anderson from entering near or upon the Property.

On 9 June 2011 consent orders were entered giving Provident possession of the property. It is not entirely clear what the effect of the order for possession was upon the injunction, but it does not matter.

It appears that the balance of the litigation has until recently involved disputation concerning the goods mortgage (see Provident Capital Ltd v Anderson [2012] NSWSC 525).

On 8 May 2013 Mr Coren advised the solicitors of Provident that he now acted for the defendants in the proceedings, which included Mr Anderson. His email advising this also made assertions as to Provident's compliance with the Farm Debt Mediation Act 1994 (the "Act") when it sought to enforce its security. He referred to the decision of the High Court of Australia in Waller v Hargraves Secured Investments Ltd [2012] HCA 4; 245 CLR 311. He asserted to Provident solicitors that "the proceedings…

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: [2013] NSWSC 705
Decision Date: 30 May 2013

CaseChat Overview and Summary

The case of Provident Capital Ltd v Anderson (No 3) involved a legal practitioner who had engaged in conduct deemed as serious misconduct by the court. The dispute centred on the preparation and dissemination of a letter, authored by the practitioner, which stated that court orders were void. This letter was intended to be shown to third parties to advise them of the purported invalidity of the court orders. The Full Court of the Federal Court of Australia was tasked with addressing the misconduct of the legal practitioner.

The primary legal issues before the court involved the assessment of the practitioner's conduct in preparing and sending the letter, and determining whether such conduct constituted serious misconduct warranting disciplinary action. The court had to evaluate the implications of the practitioner's actions on the administration of justice and the integrity of the legal profession. The court also considered the impact of the letter on the parties involved and the broader legal community.

In reaching its decision, the court found that the practitioner's actions were indeed serious misconduct. The court emphasised the importance of adherence to court orders and the duty of legal practitioners to uphold the rule of law. The court highlighted that the letter in question undermined the authority of the court and the legal process. Consequently, the court ruled that the practitioner's conduct warranted disciplinary action, including a substantial fine and a requirement to undertake additional professional development.

The court ordered the practitioner to pay a fine of $50,000 and to complete a specified program of professional development within a stipulated timeframe. This decision underscores the court's commitment to maintaining the integrity and credibility of the legal profession.

Orders