Slater v Conley

[2022] NSWSC 1053

Supreme Court

New South Wales

Medium Neutral Citation:	Slater v Conley [2022] NSWSC 1053
Hearing dates:	28 July 2022
Date of orders:	28 July 2022
Decision date:	28 July 2022
Jurisdiction:	Equity
Before:	Meek J
Decision:	Ex parte interlocutory injunction granted
Catchwords:	CIVIL PROCEDURE — Interlocutory applications — Ex parte — No question of principle
Cases Cited:	Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
Category:	Procedural rulings
Parties:	Lisa Slater (Plaintiff) Michael Leader Conley (Defendant)
Representation:	Counsel: N J Allan (Plaintiff) Solicitors: Ziman & Ziman Solicitors (Plaintiff)
File Number(s):	2022/221782

EX TEMPORE Judgment

1. HIS HONOUR: I have before me an application for urgent interlocutory relief with a form of summons that seeks that the defendant who is a solicitor be restrained from paying himself the sum of $201,017.68 being the disputed sum out of money he holds on trust for the plaintiff.

2. The hour is late (5:20 PM).

3. Mr Allan has appeared before me with a form of summons, draft short minutes of order and a witness statement signed by his instructing solicitor Mr Ziman and an exhibit DZ1 to that witness statement.

4. The urgency of the matter is explained by relation to correspondence between Mr Ziman and solicitors Colin Daley Quinn who act on behalf of the defendant Mr Conley.

5. I am informed by Mr Allan that there have been communications between the solicitors earlier today or this afternoon and that Mr Moore has been made aware that an application is being made to the Court, in particular myself as duty judge late this afternoon for orders to restrain payment of moneys out of the account.

6. I understand from what I have been told that no payment will be made at least immediately until there has been opportunity for the application to be made and the outcome known.

7. Mr Conley performed legal work for the plaintiff’s former husband in connection with Family Court proceedings.

8. On 15 December 2020 orders were made in the Family Court involving a payment by the husband to Mr Conley or his firm in the sum of $300,000 on or before 28 February 2021 and a notation that the plaintiff would pay to Michael Conley Lawyers the sum of $70,000 on or before the same date and would enter into a deed with Mr Conley in respect of what is described as the debt that appears to be the sum of both amounts, namely $370,000.

9. There is a form of draft deed in the materials suggestive that there was at the very least some discussion about payment of such amount in lieu of a much larger amount for legal fees that had been a subject of a judgment in the District Court.

10. Whilst the evidence of the agreement is somewhat sketchy, Mr Allan who has appeared before me refers to a form of order of the Family Court dated 15 December 2020, signed by the Registrar to which is annexed a form of what are said to be consent order which I have just referred to, albeit that the copy in the exhibit is not actually signed. Nonetheless, the Registrar has signed the orders.

11. There is also reference (in an affidavit appearing at p 4 of the exhibit) by the plaintiff’s former husband to the fact that the orders were made,.

12. Correspondence between Mr Ziman and Mr Moore is annexed to the exhibit.

13. This includes correspondence from Mr Moore to Mr Ziman dated 6 July 2022 confirming that a sum of approximately $1.443 million was paid into the trust account of Michael Conley Lawyers on 30 June 2022.

14. The letter makes reference to a determination of costs and a judgment in the District Court entered on 13 August 2018 that the plaintiff is to pay Mr Conley the sum of $462,266.27.

15. The assertion is made that Mr Conley is entitled to exercise a lien over the funds paid into his trust account and to withdraw the trust money.

16. The amount claimed of $461,000 is said to comprise a balance of a principal of $352,266 and interest of approximately $108,000.

17. Mr Ziman responded to Mr Moore on 17 July 2022 claiming that Mr Conley had overlooked a deed of release prepared in February 2021, asserting the deed provided for an agreed settlement amount of $370,000 and noting that payments totalling $110,000 had been made in reduction of that sum leaving a balance of $260,000.

18. The amount now said to be payable to the plaintiff is the sum of $201,000. Further correspondence occurred. Mr Ziman on 25 July 2022 corresponded with Mr Moore, putting Mr Moore and more particularly Mr Conley on notice that he had no authority to take from his trust account any amount in excess of $260,000.

19. On 27 July 2022 Mr Moore responded, asserting that the deed of release was never signed by Mr Conley and is said to have been never signed by the plaintiff. It was said that even if the deed was entered into by the parties, which was denied, it was a condition of the release that payment into the trust account of Mr Conley be made by 28 February 2021 and the payment was not made within the required time.

20. The letter concluded that Mr Conley reiterated his position intending to withdraw from his trust account the sum of approximately $461,000 today.

21. Earlier today Mr Ziman sent a letter by email to Mr Moore noting instructions to file an urgent application for injunctive relief.

22. He sought Mr Conley’s undertaking not to pay out the sum of $201,000 approximately referred to in the letter and to retain that amount in trust until the matter is heard and finalised.

23. In relation to the deed, it was said that even if it was not signed, it provides evidence of an earlier agreement and the principles in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 would apply.

24. There is a copy of the deed attached to the exhibit. It is a draft document prepared by Michael Conley Lawyers and does refer to an agreed amount of $370,000.

25. In his witness statement Mr Ziman addresses the issue regarding the deed.

26. The plaintiff was represented by Mr Beazley, solicitor, at the time it was prepared. Although she does not recall signing it, she does recall signing many documents at the time.

27. Her husband Adam, or current husband Adam, has been spoken to by Mr Ziman and he was supporting her in the litigation at the time and it is said that he is confident that she signed it.

28. Mr Ziman was a second respondent to the orders that were made in the Family Court on 15 December 2020 and in a sense Mr Allan says that the ultimate proof of the amount derives from the Family Court orders.

29. In the circumstances I am satisfied that there is a prima facie case for relief notwithstanding that at the moment the evidence is, simply by dint of the circumstances, in a somewhat sketchy form. I do not say that critically. Nonetheless, that is the reality of the state of the evidence at the moment.

30. The other consideration that needs to be taken into account is the balance of convenience.

31. Mr Allan says the balance of convenience favours the plaintiff in that if the restraining order is made the moneys still remain in the trust account and he also indicates that she proposes or will pay any interest on the amount due.

32. I accept in the circumstances currently prevailing that the balance of convenience favours the granting of the injunction.

33. In the circumstances prevailing Mr Allan has appeared before me in Court without the benefit of his instructing solicitor.

34. At this time there is no realistic chance that his instructing solicitor will be able to get to the Court immediately to facilitate taking out an order.

35. I am informed by Mr Allan that Mr Ziman gives an undertaking to pay the filing fee for the summons.

36. The form of short minutes of order prepared provide for Mr Ziman to undertake to the Court to do that and also provide for him to give to the Court the usual undertaking as to damages on behalf of the plaintiff.

37. On that basis I am prepared to make the proposed short minutes of order with some slight modification.

38. I note order 1, which is that solicitor for the plaintiff undertakes to the Court to pay the filing fee payable in respect of the filing in Court of any document for which leave to file is given.

39. I grant leave to the plaintiff to file in Court the summons, the witness statement and the exhibit DZ1.

40. I note order 4 which is the giving of the usual undertaking as to damages.

41. I order that the summons be returnable immediately.

42. I make order 6 which is the order restraining payment by the defendant of the disputed sum.

43. I make order 7 that the costs of the application be costs in the cause.

44. In the first instance I direct that a copy of the orders which are being made may be provided to the defendant and served upon Mr Moore using the email address specified in the orders.

45. Because of the nature of how the matter has come before me late this afternoon I will adjourn the summons to 10am on next Tuesday 2 August before the Duty Judge in Equity.

46. I direct that the orders may be taken out forthwith.

47. [Orders made for the service of the documents by email in an unfiled form and a copy of the orders as soon as reasonably practical but in any event no later than 7pm 28 July 2022 and for the plaintiff to serve a sealed copy of the summons and the statement and a sealed copy of the orders by 2pm 29 July 2022].

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Decision last updated: 05 August 2022