The Trust Company (PTAL) Pty Ltd v Romeo (No 4)
[2013] NSWSC 1447
•30 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: The Trust Company (PTAL) Pty Ltd v Romeo (No 4) [2013] NSWSC 1447 Hearing dates: 30 September 2013 Decision date: 30 September 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Leave granted to file in Court a notice of ceasing to act.
Catchwords: PROCEDURE - ceasing to act - leave to file a notice of ceasing to act and withdraw from proceedings - application opposed by client - failure to provide money for costs and disbursements - leave granted Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 Category: Interlocutory applications Parties: The Trust Company (PTAL) Pty Ltd (Formerly known as Permanent Trustee Australia Limited) (First Plaintiff)
Balmain Fund Administration Ltd (Second Plaintiff)
Giuseppe Romeo (First Defendant)
Anna Maria Romeo (Second Defendant)Representation: Counsel:
Mr RI Bellamy (Plaintiffs)
Solicitors:
Norton Rose Fulbright Australia (Plaintiffs)
Dettman Longworth Lawyers (First Defendant)
File Number(s): 2010/83709 Publication restriction: None
EX TEMPORE Judgment
HER HONOUR: In this matter the first defendant, Mr Giuseppe Romeo's solicitor, Damian Grant Phair, makes an application under r 7.29 of the Uniform Civil Procedure Rules 2005 for leave to file a notice of ceasing to act and to withdraw from the proceedings.
That application is supported by an affidavit of sworn by Mr Phair on 30 September 2013, in which he deposes as to the circumstances in which the application has come to be made. He there refers to the background to the application, by way of procedural history of these proceedings, as well as the costs agreements which the parties have entered, most recently a costs agreement of 5 November 2012. It provides that he is to be entitled to file a notice of ceasing to act, if Mr Romeo either unreasonably refuses to act in accordance with his advice; or an amount in excess of $1,000 in respect of any account is outstanding for more than thirty days; or if Mr Romeo does not within seven days, comply with a request to pay a disbursement or a prepayment.
Mr Phair also deposes that his firm, Dettmann Longworth, is presently owed in excess of $100,000 in legal costs and disbursements for these proceedings. He further deposes that he has filed and served a notice of intention to file a notice of ceasing to act on Mr Romeo on 28 June 2013, as well as serving a notice of intention to file a notice of ceasing to act on 8 July, 23 July and 11 September.
Mr Phair explained the circumstances in which those notices came to be served and deposes to an agreement, on his part, that he would continue to act for Mr Romeo provided that the sum of $105,000, that comprising $80,000 for counsel and $25,000 for his firm to conduct the hearing of these proceedings, was deposited into the firm's trust account by 30 July. Those funds were not received and Mr Phair outlined the subsequent discussions and negotiations between himself and Mr Romeo as to the provision of funds for the conduct of the proceedings; how they were not forthcoming; and how that led to the service of the various notices earlier referred to.
Mr Phair deposes that finally, on 24 September, no funds having been received despite repeated assurances, that he gave Mr Romeo certain advice, which he refused to act on and that thereupon, he served a notice of ceasing to act and corresponded with Mr Romeo, both by email and mail to explain why it was that he proposed to cease to act.
There is also on the file a notice of intention to file a notice of ceasing to act which was filed by Mr Phair on 22 March 2013, which is not referred to in his affidavit.
Mr Romeo opposes Mr Phair's application. He says Mr Phair ought not to withdraw so as to leave him unrepresented in circumstances where he has been paying Mr Phair $3,000 a week, money which ought not to have taken if he had intended to withdraw as he now seeks to do, at the commencement of the hearing. Mr Phair's position is that those amounts were paid to pay off what was owing the firm in respect of other matters in which it had acted for Mr Romeo.
The circumstances in which a solicitor may be granted leave to withdraw in a situation such as this has been considered in various authorities. It is settled that a client's failure to provide money for costs and disbursements can be an appropriate basis upon which the leave which is sought may be granted. Mr Phair relies on a decision given by Gzell J in Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 to support his application, submitting that the circumstances there dealt with by his Honour were akin to those which have here arisen. There Gzell J observed at [14] - [15]:
"14 In Ritchie's Uniform Civil Procedure New South Wales, at 5696 authority is cited for the proposition that a failure by a client to provide funds to cover disbursements is good cause for termination of a retainer (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). It is also stated in that work that where a solicitor is prevented by the client from properly carrying out the duties required by the retainer good cause for termination is established (Underwood Son & Piper v Lewis (1894) 2 QB 306 at 314).
15 In my view, notwithstanding the late time of the application with respect to the hearing, the solicitor for the first defendant, I think, is justified in ceasing to act. While the attempts to obtain those funds were not put into high gear until very late in the piece, the solicitors certainly were not dilatory in seeking to extract the necessary funds from their client. The client having failed to do so, in my view the solicitor's application should be granted, and I give leave to file in court a notice of ceasing to act for the first defendant. I stand the matter over before Windeyer J at noon on Wednesday 28 February 2007 or such other date as may be arranged with Justice Windeyer's Associate."
It seems to me that this, too, is a case where Mr Romeo's solicitor is justified in ceasing to act. The evidence established ongoing attempts by Mr Phair to ensure that necessary funds were provided. It cannot be thought that Mr Phair has been dilatory in his pursuit of Mr Romeo.
On the evidence, I am satisfied that Mr Romeo was put on notice in a timely way of the consequences of not providing the funds, which had been agreed would be provided, for representation at the hearing. In those circumstances I grant Mr Phair leave to file in Court a notice of ceasing to act and grant the leave sought.
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Decision last updated: 01 October 2013
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