Lawrence v Gunner

GLEESON JA: This appeal concerns judgments of Stevenson J given on 16 July 2015 and 21 August 2015: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 and [2015] NSWSC 1229.

It is convenient to set out the orders made by Stevenson J on 21 August 2015, which are the subject of the appeal:

The appeal was before the Court for directions on 15 August 2016. On that occasion, Mr PE King, of counsel, appeared for the appellants, Mr Wayne Lawrence and Mrs Valerie Lawrence, and Mr P McKell, solicitor, appeared for the respondent, Mrs Frances Gunner. The Court was informed that the parties had compromised the proceedings following successful alternative dispute resolution. The respondent had agreed that the appeal be allowed and the parties requested the Court to make orders by consent.

After the Court raised queries in relation to the specificity and appropriateness of some of the proposed orders, it became apparent that insufficient attention had been given to their form. The proceedings were stood over to 18 August 2016 to allow the parties’ representatives further time to consider the form of the proposed consent orders.

This morning, the parties’ legal representatives appeared as before and handed up proposed short minutes of order, signed by the parties and dated 18 August 2016, which provided:

The practical effect of the consent orders is that the money judgment for $315,000 in Mrs Gunner’s favour against Mr and Mrs Lawrence will be set aside, and each party will bear their own costs of the proceedings below and in this Court. The intended effect of proposed order 5 is said to be to facilitate an application by Mrs Gunner against Mr Tony Marshall, her former solicitor in the proceedings below, under s 99 of the Civil Procedure Act 2005 (NSW) and any other claim for damages which may arise as a result of such application. Mr and Mrs Lawrence also indicated an intention to make an application against Mr Marshall under s 99 of the Civil Procedure Act. The parties did not address the question of whether s 99 permits such an application by one party against another party’s solicitor, or whether it is necessary to rely upon the court’s inherent powers to control the conduct of solicitors as officers of the court: see Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [16] - [20].

The difficulty with the proposed remittal of the proceedings to the Equity Division is that the subject matter of the appeal does not include any claim against the former solicitor under s 99 or otherwise. Accordingly, there is nothing to remit. After the Court identified this difficulty, the parties agreed to delete proposed order 5.

Two other matters call for brief comment. The reference to order 7 made on 21 August 2015 (dealing with costs below), in the exclusions in proposed order 2 (which provides that the orders of 21 August 2015 are to be set aside), is inconsistent with proposed order 3 (that each party pay their own costs below). The parties agreed to delete the reference to order 7 in the exclusions to proposed order 2.

The parties also agreed to add a reference to orders 4 and 5 made on 21 August 2015, to the exclusions in proposed order 2. Those orders concerned a claim by Mrs Gunner for possession of a property at 134 Clontarf Street, which was remitted to the New South Wales Civil and Administrative Tribunal (NCAT) for the making of orders terminating the residential tenancy agreement and for possession. Orders to that effect were subsequently made by NCAT. There is no utility in setting aside the remittal of that part of the proceedings to NCAT.

The orders being by consent, a single Judge of Appeal has power to make the proposed orders: s 46(1)(a) of the Supreme Court Act 1970 (NSW).

Accordingly, the Court makes the following orders and notations, by consent, in accordance with the short minutes of order dated 18 August 2016 as amended and signed by the parties legal representatives and initialled by me: