Super 1000 Pty Ltd v Pacific General Securities Ltd - [2007] NSWSC 171

CITATION: Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171

HEARING DATE(S): 26/02/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 26 February 2007

DECISION: Leave to file notice of ceasing to act granted.

CATCHWORDS: PROCEDURE - Ceasing to act - Leave to file a notice of ceasing to act - No notice of intention - Application shortly before hearing date - Failure of client to put solicitor in funds - Opposed as causing prejudice by adjournment - Representative of defendant in Court - Whether application distinct from adjournment application

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Ritchie's Uniform Civil Procedure New South Wales

CASES CITED: Wadsworth v Marshall (1832) 2 Cr & J 665 (149 ER 279)
Robins v Goldingham (1872) LR 13 Eq 440
Warmingtons v McMurray [1937] 1 All ER 562)
Underwood Son & Piper v Lewis (1894) 2 QB 306

PARTIES: Super 1000 Pty Ltd - Plaintiff
Pacific General Securities Ltd - Defendant

FILE NUMBER(S): SC 3410/06

COUNSEL: Mr S Burchett/ Ms MGerace - Plaintiff

SOLICITORS: Crisps Solicitors (Mr DNeggo - First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 26 FEBRUARY 2007

3410/06 SUPER 1000 PTY LTD v PACIFIC GENERAL SECURITIES LTD & ORS

EX TEMPORE JUDGMENT

1 The matter before the court was set down for hearing before Windeyer J at noon today. An application is made by the solicitors for the first defendant for leave to withdraw. The application is opposed.

2 The affidavit in support of the application indicates that on 23 November 2006 a director of the first defendant was informed that it would need to pay the solicitors $15,000 by three instalments of $5,000 and the cost of the hearing would probably be $20,000 or more. Of the three weekly instalments, only one was paid.

3 On 31 January 2007, following the transfer of the proceedings to the Equity Division in November 2006, the director was contacted and the funds were sought. The matter came before Windeyer J on 16 February 2007. His Honour set the matter down for hearing before him as Expedition List judge at noon today.

4 On 14 February 2007, the solicitors attended a meeting with the director. A conversation took place indicating that the minimum amount that would be required for the purpose of the hearing was $25,000. The director indicated that he would attempt to have a cheque for that amount by Friday 16 February 2007.

5 On 16 February 2007, the solicitors sent an e-mail to the director. He sent an e-mail to his co-director that day. A further e-mail was sent by the solicitors on 19 February 2007 on which date the director replied to the earlier e-mail. On 20 February 2007, a further e-mail was sent to the director and on 21 February 2007, a telephone conversation was had with him in which he said that the solicitors would need to speak to his co-director. The director said they had…

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: [2007] NSWSC 171
Decision Date: 26 February 2007

CaseChat Overview and Summary

Super 1000 Pty Ltd, a company, sought to cease acting for Pacific General Securities Ltd, a defendant in an action. The dispute was whether Super 1000 could file a notice of ceasing to act, despite the absence of a notice of intention and the application being made shortly before the hearing date. Super 1000 argued that the client had failed to provide funds for the solicitor's services. The defendant opposed the application, citing prejudice caused by the need for an adjournment.

The legal issue was whether the court could permit Super 1000 to cease acting in these circumstances. The court had to consider whether the application was distinct from an adjournment application, and whether the defendant would be prejudiced by the adjournment. The court also needed to determine whether the client's failure to provide funds was a sufficient reason for ceasing to act.

The court held that the application was distinct from an adjournment application, and that the defendant would not be prejudiced by the adjournment. The court also found that the client's failure to provide funds was a sufficient reason for Super 1000 to cease acting. The court noted that the defendant had a representative in court and that the application was not made in bad faith. The court granted Super 1000 leave to file a notice of ceasing to act.

The court ordered that Super 1000 could cease acting as solicitor for Pacific General Securities Ltd, and that the notice of ceasing to act be filed within seven days of the order. The court also ordered that Pacific General Securities Ltd pay Super 1000's costs of the application, to be taxed on an indemnity basis if not agreed upon.

Orders