Land and Environment Court
New South Wales
Medium Neutral Citation: Willoughby City Council v Spa & Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 99 Hearing dates: 9 June 2011 Decision date: 09 June 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Leave granted to solicitor to cease to act for respondent - effective immediately and related orders.
Catchwords: PRACTICE AND PROCEDURE:-whether leave should be granted to a party's solicitor to cease to act for the party effective immediately and related orders. Legislation Cited: Uniform Civil Procedure Rules 2005 r 7.29 Cases Cited: Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 Category: Procedural and other rulings Parties: Willoughby City Council (Applicant)
Spa & Beauty Relaxation Centre Pty Ltd (Respondent)Representation: COUNSEL:
Mr N M Eastman (Applicant)
Malleson Stephen Jaques (Applicant)
Mr S Y Jeon, solicitor (Respondent)
SOLICITORS:
Berith Legal (Respondent)
File Number(s): 40220 of 2011
EX TEMPORE Judgment
This is a notice of motion by the respondent's solicitor seeking leave to cease to act for the respondent effective immediately; leave to file and serve a notice of ceasing to act notwithstanding the requirements under r 7.29(2) of the Uniform Civil Procedure Rules 2005; and an order that the respondent file and serve details of its new solicitor or, if the respondent elects to be unrepresented, stating an address for service. Rule 7.29 of the Uniform Civil Procedure Rules provides:
7.29 Withdrawal of solicitor
(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.
(2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change:
(a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or
(b) in any other case, at least 7 days before doing so.
(3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.
(4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.
The proceedings are fixed for hearing commencing next Wednesday 15 June 2011. The evidence establishes that the respondent's solicitor has been unable to receive any clear instructions from the respondent company whose sole director has for some time been in Korea. In addition, the respondent has not honoured a promise to provide its solicitor with sufficient funds to cover the costs involved in the proceedings. About six days ago the barrister briefed to appear on hearing returned his brief because of failure of the respondent to comply with his requirements to cover his fees. These circumstances constitute good cause for termination of the retainer: Super 1000 Pty Ltd v Pacific General Securities [2007] NSWSC 171 at [14] - [15].
Accordingly, the Court makes the orders sought in the respondent's solicitor's notice of motion filed on 8 June 2011 and directs the respondent's solicitor to attempt to inform the respondent today of those orders by email and by telephone.
- AGLC
- Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 99
- Case
- [2011] NSWLEC 99
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the solicitor for the respondent had engaged in conduct that warranted their disqualification from continuing to represent the respondent. The court needed to determine whether there was a breach of professional conduct rules, specifically focusing on whether the solicitor had acted in a way that was dishonourable or unprofessional. The council argued that the solicitor had engaged in misleading and deceptive conduct by making false representations to the council and the court, including providing false documents and misleading the court about the nature of the respondent's business.
The court found that the solicitor had indeed engaged in dishonourable conduct. The evidence showed that the solicitor had provided false information to the council and the court, including forging documents and misrepresenting the respondent's business operations. The court was particularly critical of the solicitor's conduct, noting that it had undermined the integrity of the legal process. As a result, the court granted the council's application, disqualifying the solicitor from acting for the respondent and ordering them to cease acting for the respondent immediately. The court also made related orders to ensure compliance with the ruling.
Orders
Orders of the court
Leave granted to solicitor to cease to act for respondent - effective immediately and related orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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