Law Society of New South Wales v Holt [2005] NSWSC 152

New South Wales Supreme Court

CITATION : Law Society of New South Wales v Holt [2005] NSWSC 152

HEARING DATE(S) : 12/11/04, 4/3/05

JUDGMENT DATE : 11 March 2005

JUDGMENT OF : Bell J at 1

DECISION : 1. Dismiss the Society's motion for summary judgment on the causes of action pleaded in paragraphs 3 to 8 of the Statement of Claim; 2. Verdict and judgment for the plaintiff against the defendant on the cause of action pleaded in paragraphs 10 to 13 of the Statement of Claim in the sum of $61, 826.20; 3. Dismiss the defendant's motion for leave to file an amended defence in the form of the draft annexed to the motion; 4. The defendant is to pay seventy-five per cent of the Society's costs of its motion for summary judgment as agreed or assessed; 5. The defendant is to pay the Society's costs of his motion to file an amended defence as agreed or assessed.

LEGISLATION CITED : Legal Profession Act 1987

Law Society of New South Wales (ACN 000 000 699) (Plaintiff) PARTIES : John Colin Holt (Defendant)

FILE NUMBER(S) : SC 10491/02

N. Manousaridis (Plaintiff) COUNSEL : R. Lovas (Defendant)

Barrie James Murdoch (Plaintiff) SOLICITORS : Chegwidden Solicitors (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

11 March 2005

10491/02 Law Society of NSW (ACN 000 000 699) v John Colin Holt

JUDGMENT 1 BELL J: The plaintiff, the Law Society of NSW (the Society), moves for summary judgment on the three causes of action pleaded in paragraphs 3 to 13 inclusive of its statement of claim filed on 22 February 2002. The plaintiff does not in this motion seek summary judgment with respect to the balance of the claims pleaded in paragraphs 14-21. 2 The defendant, by motion filed on 3 November 2004, seeks leave to file an amended defence in the form of the draft that is annexed to the motion. 3 The two motions were heard together. The Society read the affidavits of Charles James Cawley, its Secretary, sworn on 25 June 2002, 8 July 2002 and 28 October 2004 and the affidavit of Garry Terence Napper, an investigator in its employ, sworn on 24 November 2004. 4 The defendant adduced no evidence on either motion. 5 The issue for me to determine is whether the plaintiff has established that there is no real question to be tried with respect to each cause of action the subject of this application. 6 The three causes of action are claims of statutory debt brought pursuant to s 55(8) and s 110(1) of the Legal Profession Act 1987 (NSW) (the Act). 7 The defendant was at all material times a solicitor carrying on practice in New South Wales. 8 The first claim is brought under s 55(8) and is for the sum of $21,349.39, being the costs of the investigation of the affairs of the defendant carried out by Warren Gillett and certified by the Council of the Society (the Council) under s 55(8). 9 Warren Gillett has been employed by the Society as an investigator since 17 April 1989. On 13 May 1994 by instrument signed by the Society's President, Mr Gillett was appointed pursuant to s 55(1) of the Act to inspect, either generally or in a particular case, accounts kept under Pt 6 by or on behalf of solicitors or to investigate the affairs, or specified affairs, of a solicitor or solicitors. The instrument of appointment provided that Mr Gillett's power to investigate the affairs of a solicitor or solicitors was only to be exercised at the direction of the Director, Statutory Obligations, the Chief Trust Account Inspector or the Manager, Professional Standards Department. By instrument dated 28 October 1996 the Chief Trust Account Inspector directed Mr Gillett to investigate the affairs of the defendant. 10 On 13 May 1994 the Society's President by instrument appointed Garry Terence Napper pursuant to s 55(1) of the Act to inspect, either generally or in a particular case, accounts kept under Pt 6 by or on behalf of solicitors or to investigate the affairs, or specified affairs, of a solicitor or solicitors. Mr Napper's power to investigate the affairs of a solicitor or solicitors was only to be exercised at the direction of the Director, Statutory Obligations, the Chief Trust Account Inspector or the Manager, Professional Standards Department. 11 A report dated 17 December 1996 relating to the affairs of the defendant, addressed to the Chief Trust Account Inspector and jointly signed by Warren Gillett and Garry Napper, is in evidence. The claim pleaded in paragraphs 3 to 5 of the statement of claim concern the costs of the investigation the subject of this report. 12 No written direction that Garry Napper undertake an investigation into the affairs of the defendant pursuant to s 55(1) is in evidence. Mr Napper in his affidavit states that he does not recall the occasion on which he was directed to undertake the investigation the subject of the joint report with Warren Gillett. He says that it has been his invariable practice not to undertake an investigation into the affairs of a solicitor without first being directed either verbally or in writing to do so by the Chief Trust Account Inspector. 13 An account dated 6 June 1997, addressed to the defendant and signed by the Chief Trust Account Inspector, claims the sum of $21,349.39 in respect of the investigation conducted by Warren Gillett and Garry Napper between 21 October 1996 and 18 December 1996. The account is particularised as being for one hundred and eighty hours of work performed by Warren Gillett at $73.45 per hour, ninety-seven hours of work performed by Garry Napper at $75.26 per hour, travelling expenses for Mr Gillett at $278.77, searches amounting to $417.80 and photocopying in the amount of $131.60.