Alfred ATTARD & Ors v JAMES LEGAL PTY LIMITED & PETER JAMES T/AS JAMES SOLICITORS [2004] NSWSC 478

New South Wales Supreme Court

CITATION : Alfred ATTARD & Ors v JAMES LEGAL PTY LIMITED & PETER JAMES T/AS JAMES SOLICITORS [2004] NSWSC 478 HEARING DATE(S) : 7/5/04 JUDGMENT DATE : 11 June 2004

JUDGMENT OF : Bell J at 1 DECISION : Grant a stay of Applications No. 90043 of 2004, 90044 of 2004 and 90178 of 2004 pending the determination of the Common Law proceedings No. 1555 of 2004 and the Equity proceedings 20444 of 2004 upon the plaintiffs giving the undertaking that is set out in paragraph [21] above; Stand the proceedings over to Thursday 17 June at 9.15 in order to give the plaintiffs an opportunity give the undertaking; The stay granted on 2 April 2004 is continued until further order.

LEGISLATION CITED : Legal Profession Act 1987 Trade Practices Act 1974 Alfred Attard (1st Plaintiff) Michael Henry (2nd Plaintiff) PARTIES : Glowmint Pty Limited (3rd Plaintiff) Elzac Properties Pty Limited (4th Plaintiff) Construction Management Group Pty Limited (Under Deed of Company Arrangement) (5th Plaintiff) James Legal Pty Limited & Peter James T/AS James Solicitors (Defendant) FILE NUMBER(S) : SC 20044/04 COUNSEL : R. Kaye SC (Plaintiffs) N. Perram (Defendants) SOLICITORS : Lazarus Smith Lawyers (Plaintiffs) Acuiti Legal (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 11 June 2004

20044/04 Alfred Attard & Ors v James Legal Pty Limited & Peter James t/as James Solicitors

JUDGMENT 1 BELL J: By notice of motion filed on 4 March 2004 the applicants, the first to fourth plaintiffs in the proceedings, apply for orders including: 1. That the Applications No. 90043 of 2004, 90044 of 2004 and 90178 of 2004 by a Practitioner of Assessment of Costs be stayed pending determination of proceedings No. 1555 of 2004 and these proceedings. 2. Further or in the alternative to paragraph 1 hereof, an order that the Applications No. 90043 of 2004, 90044 of 2004 and 90178 of 2004 by a Practitioner for Assessment of Costs by consolidated with Proceeding No. 1554 of 2004 ("Equity Proceedings") and these proceedings pursuant to Supreme Court Rules Pt 31 rule 7 and/or that the respective actions be heard together. 2 Argument focussed wholly on the relief claimed in prayer one. 3 It is convenient to refer to the applicants on the motion as the plaintiffs and to the respondents as the defendants. 4 In support of the motion the plaintiffs relied upon the affidavit of their solicitor, Barry Neil Lazarus sworn on 3 March 2004. The defendants read the affidavit of Peter Richard James sworn on 4 May 2004. 5 It appears that the first and second plaintiffs, together with their respective family companies, were involved with the fifth plaintiff, Construction Management Group, in lengthy litigation involving a firm of developers, Franks Centre Lofts Pty Limited (FCL). The litigation was commenced at a time when Blessington Judd, solicitors, were acting on the plaintiffs' behalf. 6 In or about July 2000 the plaintiffs retained the defendants, James Legal Solicitors, to act on their behalf in relation to the various proceedings. The proceedings are summarised in a schedule, that is annexure "A" to the affidavit of Mr Lazarus: 1. Franks Centre Lofts Pty Limited v Construction Management Group & Michael Henry & Alfred Attard, Supreme Court Proceedings No. 55017 of 1999, 2. Construction Management Group v Allatech Pty Limited, Supreme Court Proceedings No. 55021 of 2000, 3. Orlando Pty Limited v Frank Centre Lofts, District Court Proceedings No. 1802 of 2000 (NB Frank Centre Lofts cross claimed against Construction Management Group), 4. Construction Management Group v Supreme Linings, District Court Proceedings No. 2024 of 2000. 7 I was informed that the defendants ceased to act on the plaintiffs' behalf around April/May 2003. 8 By letter dated 25 August 2003 Lazarus Smith Lawyers, who by this time were acting on the plaintiffs' behalf, wrote to the defendants requesting that they be provided with itemised bills of costs in respect of all fees and disbursements for which the defendants had already been paid together with any fees and disbursements that were alleged to be still owing to them. Following further correspondence by letter dated 17 November 2003 Lazarus Smith put the defendants on notice that the plaintiffs alleged the conduct by them of the FCL litigation on their behalf had been negligent.