White v Attwells

[2021] NSWSC 1304

Supreme Court

New South Wales

Medium Neutral Citation:

White v Attwells [2021] NSWSC 1304

Hearing dates:

12 October 2021

Date of orders:

12 October 2021

Decision date:

12 October 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Each party is to bear its own costs of the Notice of Motion filed on 5 May 2021 and the Amended Notice of Motion filed on 29 September 2021.

(2) The Amended Notice of Motion is otherwise dismissed.

(3) The “Fees Proceedings” are stood over for directions before the Registrar on 18 October 2021 at 9am for case management.

(4) The parties are to courteously liaise regarding proposed necessary orders for the final stages of preparation of these proceedings for the hearing listed on 22 November 2021 and attempt to agree on those orders.

Catchwords:

CIVIL PROCEDURE – costs – costs of notice of motion – indemnity costs order sought payable forthwith – failure to invoke liberty to apply – unnecessary notice of motion – each party to bear its own costs

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58 & 59

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Gary Alan White (Plaintiff)
Noel Bruce Attwells (Defendant)

Representation:

Counsel:
M Davis (Plaintiff)
R Newell (Defendant)

Solicitors:
Gary Alan White (Self-Represented)
L.C. Muriniti & Associates (Defendant)

File Number(s):

2017/239938

Publication restriction:

Nil

REVISED EXTEMPORE Judgment

1. These proceedings, commenced in August 2017, relate to hard fought litigation in which, on my imperfect understanding of its history, involved the Plaintiff acting as solicitor for the Defendant / Cross-Claimant. I understand that these proceedings are referred to as the “Fees Proceedings” and together with “Professional Negligence” proceedings, are listed for hearing before a judge of this Court on 22 November 2021 with a five day estimate.

2. It is common ground that Adamson J has provided a number of decisions in the proceedings and has at times been case managing the proceedings, including on 30 November 2020, making a series of orders which included Order number 2 directing Mr White, on or before 11 January 2021, to provide the following to Mr Attwells legal representatives: “(d) any further evidence or records evidencing payments made to Mr White in respect of proceedings brought by Mr Attwell(s)”.

3. The time for compliance with that order was extended by her Honour on 5 February 2021 to allow compliance with the order by 26 February 2021, and to vary the wording of the order by adding the following words at the end of the order, “referred to as the Jackson Lalic proceedings”.

4. The orders made by her Honour also included “liberty to the parties to restore the matter to the list by contacting the associate to Adamson J on three days’ notice”. That order was a feature in just about every set of directions made by her Honour and obviously, until vacated, remains an extant order of this Court.

5. On 6 May 2021 a Notice of Motion was filed on the part of the remaining Defendant, Noel Bruce Attwells, seeking orders that the Cross-Defendant’s Defence to Cross-Claim be dismissed and an order for judgment entered on the grounds that the Cross-Defendant had refused to comply with the Court’s orders. In the alternative he sought that the cross defendant be ordered to “Provide a schedule of all payments made by either Gregory Attwells Noel Attwells or on behalf of either for the purpose of the Jackson Lalic proceedings within seven days” and that in default of compliance with that proposed order, there should be a guillotine order dismissing the Cross-Defendant’s Defence to the Cross-Claim and in the alternative to that order, that Mr Attwells have leave to file a motion seeking dismissal of the Cross-Defendant’s Defence, as well as payment of the costs of the motion on an indemnity basis to be assessed and paid forthwith.

Evidence

6. In support of that Notice of Motion, an Affidavit of Leonardo Muriniti sworn 5 May 2021 was read. That Affidavit contained a series of correspondence between Mr Muriniti and Mr Newell and Mr White, (and on occasion a firm that appears to have been acting for Mr White), complaining about various things including the failure to comply with that particular order.

7. Also filed was an Affidavit of Noel Attwells dated 12 May 2020 containing information regarding his assertions as to what payments were made to Mr White in respect of the relevant proceedings.

8. In response, a lengthy Affidavit of Gary Alan White sworn 6 August 2020 was filed which annexed a deal of information regarding the “Fees Proceedings”. There was also an Affidavit of Mr White of 11 May 2021 filed covering, in broad terms, reasons for delay in complying with her Honour’s orders and other matters relevant to the proceedings.

9. There was an additional Affidavit of Mr White of 3 June 2021 covering the same kind of subject matter, and an Affidavit of 17 September 2021, again dealing with delays due to Mr White’s health.

10. Further, there was an Affidavit of Leonardo Muriniti sworn 23 September 2021 which updated the position regarding correspondence between the parties which I observe at times to have been pernickety, rude and overly inclusive of invective and which often did not serve to progress the matter, but instead revealed entrenched positions and accusations which seemed to me to be matters best left out of correspondence, particularly in proceedings like this that have had a long and, may I say, ugly history.

Argument on 29 September 2021

11. Nevertheless, the matter came before me on 29 September 2021 to deal with the issues raised between the parties. On that day leave was sought to file an Amended Notice of Motion which was the same as the May Notice of Motion but additionally sought leave to file an Amended Cross-Claim, which was not opposed.

12. I heard argument on that day as well as having spent time reviewing the multiplicity of affidavits, some of which obviously related to the proceedings proper as well as to the dispute about the orders. I was assisted by Mr Newell and Mr Davis, (counsel for Mr White), in obtaining an understanding of the matter and lengthy written submissions were provided authored by Mr Muriniti which I read.

13. Mr Davis candidly conceded, as he had to, that Mr White had not complied with her Honour’s order. Accordingly, it seemed to me that it was evident that the Applicant Defendant / Cross-Claimant was entitled to the relief he sought in his Notice of Motion. I made an order in the specific terms sought by order 2 in the Amended Notice of Motion and added some, what I hoped, were clarifying features to ensure that the table provided by Mr White addressed the issue to which the initial order seemed to have been directed.

14. It was also evident that given that non-compliance, there was a live issue as to who should pay the costs of the Notice of Motion. I indicated a preliminary view that costs of the Notice of Motion ought to be paid by the Respondent / Cross-Defendant (Mr White) because of the non-compliance with her Honour’s order, but Mr Davis asked me to reserve costs so that he could consider his position and provide a short outline written argument.

15. In the intervening period, a schedule purportedly in response to my order made on 29 September was provided. It is evident from correspondence annexed to the Affidavit of Mr Muriniti of 6 October which was read today by Mr Newell, that the Defendant / Cross-Claimant (Attwells) considers the material to be unsatisfactory in various ways, but as I have mentioned, I consider that to be an issue for the trial judge. It is evident there is significant dispute between the parties regarding whether and when payments were made pursuant to the fee agreement.

Submissions on costs

16. The parties took, in effect, diametrically opposed positions about the question of costs of the motion.

17. Mr Newell submitted in his written document that the Court ought to order the costs of the motion be paid on an indemnity basis, to be assessed and made payable forthwith.

18. The reasons for that were stated to be first, that the delay and the non-compliance with the order over a lengthy period and, in particular, in relation to an omission of undisputed payments made by Kim Attwells, was inexplicable and had been brought to the attention of Mr White so many times that any explanation for the failure to include them was not meritorious.

19. Second, Mr Newell complained that the ledger does not reflect his instructions as to what was paid and when.

20. Third, in correspondence Mr White is said to have repeatedly refused to answer interrogation regarding aspects of the “Kim Attwells” payments.

21. Fourth, the first ledger served makes it clear that Mr White’s omission to include the “Kim payments” was because of a “fixed and calculated intention not to repay those monies and to remain silent as to whether the peculiar structure of his previous client ledgers concealed a claim that the monies had been repaid”.

22. Fifth, as disclosed in the Muriniti affidavit, Mr Newell argued that there is a schedule of “incontrovertible payments” that can be constructed from bank statements and that that information is unreconcilable with any client ledgers that Mr White has provided.

23. Sixth, there was a letter forwarded to Mr White on 1 October pointing these matters out and the failure to respond to that should be viewed in a particular way by the Court, that is negatively towards Mr White.

24. In summary, Mr Newell has submitted that the Cross-Defendant, Mr White, has not produced a compliant client ledger or an explanation and that as a result of this, the Cross-Defendant, Mr Attwells, has had a “substantial injustice visited upon him” and has “incurred very significant wasted costs”.

25. Mr Davis, in his succinct submissions, argued that there should be no order as to costs because the orders obtained on 29 September as made by me, could have, and should have, been sought by way of case management directions.

26. He also observed that the orders about which complaint is made appear to have been made in the Professional Negligence Proceedings by her Honour. I interpolate here to observe that that may well be right, but I do not consider that a reason why the order ought not be complied with and needed to be complied with at some level. However, it does underscore the very reason why as case management orders, the proper course would have been to refer the matter back to Adamson J in pursuit of the liberty to restore order specifically made.

27. Mr Davis argued that the first time any order was made requiring Mr White to provide a schedule of payments in these proceedings was the one made by me on 29 September and that order has been complied with.

28. In summary, these orders could have been made, and should have been obtained by way of having the matter listed for case management directions. Mr Davis argued there was no need for the time and expense spent on the preparation of numerous affidavits by the parties to address the issue, the Notice of Motion ought not have been filed and there should be no order as to costs.

Decision

29. The usual order in respect of circumstances where a party files an application and it is successful, is that costs should follow the event. I do, however, have a very wide discretion under the Uniform Civil Procedure Rules 2005 (NSW) to make a costs order that does justice between the parties.

30. It seems to me that the most significant circumstance in respect of this very large volume of material I have been required to read and the arguments to which I have had to listen, illustrate very clearly why leave to apply or liberty to apply on a number of days’ notice is an important mechanism for case management utilised in this Court. It is important to observe that the Amended Notice of Motion the Court was asked to deal with, sought significant orders in these proceedings, including the striking out of the Defence to the Cross-Claim which would have had an overarching effect on issues to be determined by the Court at the hearing in November 2021.

31. It was obvious the motion was used as a tool or weapon to deploy in forcing a position in the litigation rather than, as I consider ss 56 to 59 of the Civil Procedure Act2005 (NSW) require of legal practitioners, the most efficient and effective and costs effective way of dealing with an issue. Instead, what has been deployed is a combative, procedurally dense, paper-laden way forward.

32. Countering that observation however is that it does seem from the correspondence, that Mr White did not and was not prepared to, or for whatever reason failed, to comply with her Honour’s order in a timely fashion.

33. It seems to me that the proper order to make, having examined all the circumstances, is that each party should bear its own costs of the Notice of Motion.

34. The orders I make accordingly are:

1. Each party is to bear its own costs of the Notice of Motion filed on 5 May 2021 and the Amended Notice of Motion filed on 29 September 2021.

2. The Amended Notice of Motion is otherwise dismissed.

3. The “Fees Proceedings” are stood over for directions before the Registrar on 18 October 2021 at 9am for case management.

4. The parties are to courteously liaise regarding proposed necessary orders for the final stages of preparation of these proceedings for the hearing listed on 22 November 2021 and attempt to agree on those orders.

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Decision last updated: 13 October 2021