Doulaveras v Daher [2009] NSWCA 58

New South Wales Court of Appeal

CITATION: Doulaveras v Daher [2009] NSWCA 58

HEARING DATE(S): 10 December 2008

JUDGMENT DATE: 20 March 2009

JUDGMENT OF: Giles JA at 1; Campbell JA at 6; Macfarlan JA at 173

(1) Appeal dismissed with costs. (2) Note that the stay ordered by Allsop P on 7 July 2008 concerning orders below in the present proceedings ceases upon the making of these orders. DECISION: (3) Vary order 2 made by Allsop P on 7 July 2008 to read: Order that the Appellant by herself, her servants and agents or otherwise be restrained from selling, mortgaging, leasing or otherwise dealing in any way with the land comprised in folio 33/381014 and known as 26 Ocean Avenue, Newport, New South Wales or any interest therein, save for the purpose of carrying out orders 3 and 6 made by Windeyer J on 25 June 2008. (4) Order (3) hereof be dissolved upon compliance by the Appellant with orders 3 and 6 made by Windeyer J on 25 June 2008.

CATCHWORDS: LEGAL PROFESSION – lawyers – retainer – challenge to – proper procedure for a challenge to retainer – whether a challenge to retainer can be pleaded by way of defence – whether a separate motion is needed to mount a challenge to retainer – circumstances where a challenge to retainer can be litigated together with a final hearing – onus of proof of showing that solicitor lacks authority – PROCEDURE – courts and judges generally – proper procedure for a challenge to retainer – inherent power of a court to stay proceedings as an abuse of process – PROCEDURE – judgments and orders – effect of judgments – effect of pleading an argument by defence – difference between outcome of a defence and a notice of motion – difference between estoppel by judgment and stay or striking out of action – PROCEDURE – courts and judges generally – effect of pleadings alleging technical language with no legal content – PROCEDURE – Supreme Court procedure – New South Wales – bringing an action by tutor – meaning of "person under legal incapacity" – EQUITY – general principles – unconscientious conduct – special disability – lack of capacity to understand the effect of transactions – whether evidence shows problems with cognition and language – EVIDENCE – witnesses – failure to call witness due to problems with cognition and language – whether Jones v Dunkel inference should be drawn – whether absence of witness is unexplained – - WORDS AND PHRASES – "estoppel by judgment" – "challenge to retainer" – "challenge to solicitor's retainer" – "person under legal incapacity"