Tu v Ch Real Estate Pty Ltd trading as Raine and Horne Campbelltown
[2017] NSWSC 1630
•10 October 2017
Supreme Court
New South Wales
Medium Neutral Citation: Tu v CH Real Estate Pty Ltd trading as Raine and Horne Campbelltown [2017] NSWSC 1630 Hearing dates: 10 October 2017 Decision date: 10 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to the applicant to file in court a notice of motion in the form initialled by me dated 10 October and placed with the papers; leave granted pursuant to r 7.29 UCPR to the applicant to file a notice of ceasing to act dated 10 October 2017; notice of ceasing to act to be filed and served forthwith on all active parties; these orders to be entered forthwith
Catchwords: CIVIL PROCEDURE – ceasing to act – Uniform Civil Procedure Rules, r 7.29 – whether solicitor on record should be granted leave to file a notice of ceasing to act where hearing listed for following week Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.29 Category: Procedural and other rulings Parties: Margaret Sze Tu (plaintiff)
CH Real Estate Pty Ltd trading as Raine and Horne Campbelltown (first defendant)
Jam Studies Pty Ltd (second defendant)Representation: Counsel:
Solicitors:
R Watson (second defendant)
Houston Lawyers (plaintiff)
BN Law (first defendant)
Tress Cox Maddox (second defendant)
File Number(s): 2015/219254 Publication restriction: None
Judgment
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HER HONOUR: These are proceedings for possession listed for hearing for five days commencing next Monday.
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The second defendant is the occupant of the premises. The second defendant has had a number of different solicitors on the record. Most recently, Mr Robert Watson filed a notice of change of solicitor on 24 August 2017, coming on to the record as the second defendant's solicitor.
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Mr Watson now seeks leave to file a notice of ceasing to act. Leave is required under r 7.29 of the Uniform Civil Procedure Rules 2005 (NSW) because a date for trial has been fixed and it is now less than twenty-eight days until that date. It may be noted, however, that the application is brought in circumstances where Mr Watson only came on to the record some six or seven weeks before the hearing date.
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Mr Watson provided a costs agreement to the second defendant which was signed on 29 August 2017. That agreement provided an estimate of Mr Watson's costs, excluding disbursements. No sum has been paid into Mr Watson's trust account against that estimate.
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Separately, Mr Watson briefed counsel to appear at the proceedings and he also provided an estimate of his fees for which, if the matter were to proceed, Mr Watson would be personally liable. No sum has been paid into Mr Watson's trust account on account of those fees.
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Separately, counsel gave appropriate advice as to steps required to be taken in order to have the proceedings ready for hearing, which included a further estimate of fees payable to an expert forensic accountant. That witness has indicated that she would not be prepared to undertake the further work required until payment in advance of the cost of her report, and no sum has been paid into Mr Watson's trust account for that to occur.
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I would apprehend the requirement for leave to be directed to a circumstance where a solicitor who has been on the record for some period of time seeks to go off the record without good reason in the period shortly leading up to the trial. The vice at which such a rule is directed is plain. The business of the Court could not be conducted in an orderly way if solicitors were free to go off the record at whim to the detriment of their clients.
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The circumstances presented by Mr Watson's evidence present the opposite scenario. Mr Watson plainly came on to the record in the hope of reaching a position in the period leading up to the trial where an unrepresented party could adequately be represented at the hearing, but owing to the party's own conduct Mr Watson has been placed in a position of being unable to achieve that, through no fault of his own.
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In the circumstances, I am persuaded that it is appropriate to grant leave to him to file a notice of ceasing to act.
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The orders proposed by Mr Watson include, in the alternative, orders which would see an abridgement of the time for service of the present application so that the application would be brought back before me tomorrow morning. Mr Watson has, however, very fairly communicated his intention to make the present application to the director of the second defendant, who has indicated that he does not see any point in seeking to be heard on the application.
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In the circumstances, I am persuaded that it is appropriate to make orders 1 to 4 proposed as the primary orders in the applicant’s proposed short minutes.
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Having regard to the nature of the present application and the content of Mr Watson's affidavit, it is appropriate for that material to be held on the file, sealed in a confidential envelope, so as to insulate the trial judge from the content of that material.
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Decision last updated: 28 November 2017
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