Orr v Grogan & 2 Ors [1999] NSWSC 665

Reported Decision : (1999) NSW ConvR 55-931

New South Wales Supreme Court CITATION : Orr v Grogan & 2 Ors [1999] NSWSC 665 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 10846/97 HEARING DATE(S) : 24, 25, 26 June 1999 JUDGMENT DATE : 6 July 1999

Leonard Cornelius Orr v PARTIES : Dennis Patrick Grogan (1st Defendant) Lewis James Webb (2nd Defendant) Margaret Leigh Linden (3rd Defendant) JUDGMENT OF : Sperling J

COUNSEL : For Plaintiff: I M Wales SC For 1st, 2nd & 3rd defendants: P M Morris SOLICITORS : For Plaintiff: Stuart & Mills For 1st, 2nd & 3rd Defendants: Turtons CATCHWORDS : LEGAL PRACTITIONERS - solicitor's liability to account pursuant to an irrevocable authority despite new instructions; IRREVOCABLE AUTHORITY - conditions for liability to account pursuant to same - promise to account, express or implied. ACTS CITED : Supreme Court Act 1970, s 94 CASES CITED : Redglove Holdings Pty Ltd v Kindy 4 Kids (Australia) Pty Ltd (Brownie J, 5 December 1994, unreported) DECISION : Paragraph 83

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SPERLING J

Tuesday, 6 July 1999

10846/97 Leonard Cornelius Orr v Dennis Patrick Grogan & Ors

JUDGMENT HIS HONOUR: 1 This is a money claim made by the plaintiff, Mr L C Orr, solicitor, against the defendants, Mr D P Grogan, Mr L J Webb and Ms M L Linden, solicitors. The first and second defendants were at relevant times the principals of the firm Grogan & Webb, and the third defendant was employed by them. 2 In the following narrative of events, I will indicate where a contentious issue arises. Otherwise, my account of the facts was common ground or not seriously in issue. 3 Although there are some serious differences between the versions of events given by Mr Orr and Ms Linden in these proceedings, I think both were doing their honest best to be accurate and reliable. 4 In 1989, Mr J E Nove retained Mr Orr to act for him in matrimonial proceedings. An application was made to the Family Court by Mr Nove for a property settlement. A cross application was made by Mr Nove's wife. The proceedings were heard by his Honour Justice P J Moss in July 1990. Mr P I Rose of Queen's Counsel and Mr P M Connor of counsel appeared for Mr Nove. Mr R G Lethbridge of counsel appeared for Mrs Nove. At the conclusion of the hearing, his Honour reserved his decision. 5 The matter was listed for judgment on 14 September 1990. A matter seriously in contention had been the value of a farm property at Tyagarah. Prior to 14 September 1990, a price for the sale of that property had been negotiated significantly higher than had previously been envisaged (although contracts were not exchanged for the sale of the two lots comprising the Tyagarah property until 17 and 30 October 1990). Accordingly, judgment was deferred. The hearing was resumed on 12 November 1990 to take into account the price secured for the Tyagarah property. Judgment was given on 16 November 1990. 6 In relation to the sale of the Tyagarah property, Mr Nove retained Ms Linden to act for him. Mr Orr and Ms Linden maintained contact in relation to the sale. Their relationship was cordial and co-operative. 7 On 9 October 1990 Mr Orr wrote to Mr Nove as follows: "As you are aware the writer and Counsel have carried the conduct of this case on a speculative basis and we would be pleased if you would give consideration to payment of our outstanding account from the proceeds of the sale of the Tyagarah farm. If you regard this as reasonable would you please sign the enclosed authority." 8 The authority signed by Mr Nove and dated 10 October 1990 was in the following terms: "AUTHORITY