Lawrence Lin & Anor v Ian Borrowdale & Ors [2011] NSWCA 65

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lawrence Lin & Anor v Ian Borrowdale & Ors [2011] NSWCA 65 Hearing dates: 2nd March 2011 Decision date: 23 March 2011 Before: Macfarlan JA at [1] Young JA at [2] Whealy JA at [6] Decision: (1) Set aside Order 3 made by the third respondent on 17 th July 2009, as follows: "The Court directs Mr Lawrence L Lin of Accentro Legal (or other persons at that firm) pay to solicitors for the plaintiff money held on behalf of the defendant in part payment of the verdict, but not to otherwise dispose of the money within 28 days." (2) Set aside the order of the third respondent made on 21 st December 2009, dismissing the applicant's application to vary Order 3 made by the third respondent on 17 th July 2009 (3) Order that the decision of the third respondent made on 21 st December 2009 granting Order 1 of the first respondent's Notice of Motion filed on 22 nd September 2009 be set aside (4) Order that the following orders made by the third respondent on 21 st December 2009 be set aside: (a) The order that the applicant pay the first respondent's costs of the Notice of Motion filed on 18 th December 2009 on an indemnity basis; (b) That the applicants pay the first respondent's costs of the Notice of Motion filed on 22 nd September 2009 on an indemnity basis; and (c) That the first applicant pay the first respondent's costs of 11 th September 2009, 30 th October 2009, 5 th November 2009, 7 th December 2009 and 17 th December 2009 on an indemnity basis. (5) The first respondent is to pay the applicant's costs of this Summons, and each of the proceedings in the District Court of New South Wales involving the Notice of Motion filed by the applicant in the District Court of New South Wales on 18 th December 2009, and the first respondent's Notice of Motion filed in the District Court of New South Wales on 22 nd September 2009. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - CIVIL - Power of District Court to make order that 3rd party hand over monies in trust account - solicitor's undertaking - limitations on garnishee power - limitations on injunction power under s 46 District Court Act 1973 - limitations on implied power to make freezing order - interim asset preservation orders - contempt of court - void order - no power to refer contempt where order a nullity. Legislation Cited: Supreme Court Act 1970 (NSW) s 69 District Court Act 1973 (NSW) s 44, 46, 140, 203 Civil Procedure Act 2005 (NSW) s 117, 123, 124 Uniform Civil Procedure Rules (NSW), rr 25.11, 25.13, 25.14, 39.34, 39.35, 39.36, 39.39, 39.40 Legal Profession Act 2004 (NSW) Cases Cited: Re Matthews (Unreported, New South Wales Court of Appeal, Moffitt P, Hutley and Samuels JJA, 7 March 1984) Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 44-45 Tagget v Sexton [2009] NSWCCA 91; (2009) 255 ALR 522 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 Category: Principal judgment Parties: Lawrence Liwei Lin (First Applicant) Sanempero Group International Pty Limited (t/as Accentro Legal) (Second Applicant) Ian Borrowdale (First Respondent) Sean Clifford (Second Respondent) District Court of NSW (Third Respondent) Representation: Counsel: D Lloyd (Applicant) M Lawson (First Respondent) Solicitors: Parramatta City Legal (Applicant) Robertson Lawyers (First Respondent) File Number(s): CA 2010/14709 Decision under appeal Before: McLoughlin DCJ File Number(s): DC 1540/08