Wilson v Gilles - [2020] NSWSC 657

Supreme Court

New South Wales

Medium Neutral Citation: Wilson v Gilles [2020] NSWSC 657
Hearing dates: 20 May 2020
Date of orders: 20 May 2020
Decision date: 20 May 2020
Jurisdiction: Equity
Before: Rees J
Decision:
Refuse to order solicitors to pay money in trust account to husband, in absence of direction also from wife

Catchwords: LEGAL PROFESSION – trust accounts – monies held for two clients – husband and wife, separated – sell former matrimonial home – instruct solicitors to hold proceeds in trust account until they agree what to do – husband seeks his share of proceeds – no consent from wife – solicitor cannot pay monies without direction from both – whether to order otherwise – refuse order
Legislation Cited: Interpretation Act 1987 (NSW), s 8(b)
Legal Profession Uniform Law (NSW), Rule 8.1, ss 135(1), 138
Australian Conduct Rules 2015 (NSW), rr 36(2)(e), 44(1)(e) and (f)
Cases Cited: Australian Broadcasting Commission v Lenah Game Meats Pty Limited (2011) 208 CLR 199
Price v ACN 627087030 Pty Limited t/as Yates Beaggi Lawyers [2020] NSWSC 584
Simone v Kola (No 2) [2017] NSWSC 821
Wexford Pty Limited v Praveen Meckraj Doolub [2008] NSWSC 1233
Category: Principal judgment
Parties: Paul Wilson (Plaintiff)
Joseph Gilles (First Defendant)
Gregory Eliades (Second Defendant)
Rena Wilson (Third Defendant)
Representation:
Counsel:
Mr G George (Plaintiff)
Mr L Fermanis (First and Second Defendants)
Mr J Horowitz (Third Defendant)
Solicitors:
The Law Shoppe (Plaintiff)
Giles, Payne & Co (First and Second Defendants)

File Number(s): 2020/143909

ex tempore Judgment

HER HONOUR: The plaintiff, Paul Wilson, seeks an interlocutory order that the first and second defendants, law firm Giles Payne & Co, pay 75% of the proceeds of sale of a property in Hillsdale to him, such moneys being presently held in the solicitors’ trust account. The Hillsdale property was owned by Mr Wilson and his wife, the third defendant, Rena Wilson. They are separated. Alternatively, an order is sought that the monies be paid to Mr Wilson on an undertaking that his solicitor will retain 25% of the proceeds of sale in a controlled monies account.

Facts

In 1997, the Hillsdale property was purchased by the husband, the wife and the husband’s mother, Ellen Wilson. Title to the property was held as tenants in common, with Ellen Wilson as to one half and the husband and the wife as to one quarter each. In 1999, the husband and wife married. In 2000, Ellen Wilson passed away and the husband inherited his mother's interest in the Hillsdale property. Thus, title to the Hillsdale property was then held as tenants in common, with the husband as to three-quarters and the wife as to one quarter.
In 2018, the husband and wife separated. In June 2019, they instructed Giles Payne & Co to act on the sale of the Hillsdale property. Margaret Howes, a paralegal employed by Giles Payne & Co, said that she received a telephone call from the husband who said he wanted to sell the matrimonial home; his…

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.

Continue reading Wilson v Gilles

Details

AGLC: Wilson v Gilles [2020] NSWSC 657
Case: [2020] NSWSC 657
Decision Date: 20 May 2020

CaseChat Overview and Summary

The case of Wilson v Gilles involved the husband, the appellant, and the wife, the respondent, who were separated but not divorced. The dispute centred around the sale of their former matrimonial home, with the proceeds held in a trust account by the solicitors, pending a decision by the parties on how to distribute the funds. The appellant sought his share of the proceeds, but the solicitors could not pay him without consent from the respondent. The court was asked to decide whether it should order the solicitors to pay the appellant his share of the proceeds without the respondent's consent.

The legal issues in the case were whether the court should intervene in the solicitors' trust account and direct them to pay the appellant his share of the proceeds in the absence of the respondent's consent. The court had to consider the principles of equity and justice, as well as the powers of the court to order the payment of trust money. The court also had to consider the solicitor's duty to hold client funds in a trust account until the clients give directions on how to proceed.

The court held that it should not order the solicitors to pay the appellant his share of the proceeds without the respondent's consent. The court recognised that the solicitors were acting within their professional obligations by holding the proceeds in a trust account until the parties gave directions. The court held that it did not have the power to order the payment of trust money in the absence of consent from both clients. The court also held that it would be unjust to order the payment of the appellant's share of the proceeds without the respondent's consent, as it would deprive her of her right to be consulted on the disposition of the proceeds.

The court refused the appellant's application for an order directing the solicitors to pay him his share of the proceeds. The court held that the solicitors had acted properly in holding the proceeds in a trust account until the parties gave directions. The court also held that it did not have the power to order the payment of trust money in the absence of consent from both clients. The court further held that it would be unjust to order the payment of the appellant's share of the proceeds without the respondent's consent, as it would deprive her of her right to be consulted on the disposition of the proceeds.

Orders