Supreme Court New South Wales Medium Neutral Citation: Falco & Ors v Lambert & Anor [2014] NSWSC 125 Hearing dates: 24 February 2014 Decision date: 24 February 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Summons for taking of accounts and for commission to be determined before other issues in the proceedings Catchwords: WILLS, PROBATE AND ADMINISTRATION - Whether Summons for taking accounts and for commission should be dealt with by Registrar before other issues in proceedings Category: Procedural and other rulings Parties: Joseph Peter Falco, Tanya Maree Falco, Mark James Falco (Plaintiffs) Peter John Lambert (First Defendant) Peter Kenneth White (Second Defendant) Representation: Counsel: Mr A.J. Bulley (Plaintiff) Mr C.F. Hodgson (First Defendant) Mr M. Gorrick (Second Defendant) Solicitors: Glasson, Gemmell & McGill (Plaintiffs) Armstrong Legal (First Defendant) Teece Hodgson & Ward (Second Defendant) File Number(s): 2010/26928 Publication restriction: No EX TEMPORE Judgment 1HIS HONOUR: These proceedings were commenced by Statement of Claim filed 27 September 2012 seeking orders, inter alia, that the first defendant institute proceedings for the filing and passing of accounts in the Probate Registry. That does not reflect the extent of the other orders sought in the proceedings by the plaintiffs, including by way of principal relief that the grant of probate of the will of the late Arthur Michael Falco (the "deceased") to the first defendant be revoked and that probate of the deceased's will be granted to Patricia Jean Falco. 2During the course of the ongoing conduct of the proceedings the first defendant did in fact file a Summons for orders passing the accounts and for commission on 1 March 2013. Perhaps slightly irregularly, but nonetheless conveniently, the Summons for the passing of accounts bears the same case number as the Statement of Claim. 3Since the commencement of the proceedings, the Statement of Claim has undergone further amendment including to join the second defendant, who was the solicitor retained by the first defendant in relation to the administration of the deceased's estate. A central issue in the proceedings, at least from the plaintiffs' point of view, is whether or not (in the absence of an express provision to do so, whether by way of what is sometimes referred to as a "solicitor's charging clause" or otherwise) the first defendant was entitled to retain the second defendant. A consequential issue, reflecting what has occurred, is whether in those circumstances the first defendant was entitled to pay the second defendant's costs and expenses in execution of his retainer out of the assets of the estate. 4These proceedings first came before me some months ago in the Applications List. Since then, already having delivered one set of interlocutory reasons and having become familiar with them, I have been case managing the proceedings with a view to their being dealt with in a cost effective and expeditious way. 5On an earlier occasion I raised with the parties the possibility of whether it would be advantageous for the just, quick and cheap resolution of these proceedings for the Court to determine by way of separate question the entitlement issues, if I can call them that, raised by the plaintiff. In considering that matter it is important to note that the Summons for the passing of accounts and commission has remained in abeyance while the plaintiffs' claim has continued to be case managed. 6At least at first blush, and for apparently good reasons, the parties accepted that to proceed by way of separate question might be of assistance. The second defendant took the running of propounding a notice of motion including prayers for a separate question or questions identified in that motion. So much of that motion was argued before me today. 7As is sometimes the case, an application for separate questions is, if nothing else, an occasion upon which the parties are able to engage in a considered and focused way on what the important issues are in the proceedings. That is what has happened today. However, in the course of carefully prepared and most helpful submissions from all the parties, a further possibility arose for consideration. That was that the best way to advance matters would be to proceed, as far as possible, with the Registrar dealing with the Summons for the passing of accounts and for commission. 8After hearing the parties in relation to that question and considering the matter over the morning tea adjournment, I have come to the view that allowing the Summons for accounts and commission to go forward is the best way to assist the parties in the just, quick and cheap resolution of all of the proceedings. My reasons for reaching that conclusion are, first, that it will assist the parties in ascertaining precisely how much money they are really arguing about. That will enable a useful mediation in due course. Second, it will assist in the identification of what, if any, precise legal questions may need to be resolved, for the disposal of the issues raised in both the Summons and in the Amended Statement of Claim. 9For example, it may be that the Registrar will be able to deal with all the matters which the parties may wish to raise in relation to the passing of accounts and the awarding of commission. That may extend, although in this I think it is for the Registrar to form his or her own view, to resolving the plaintiffs' contention concerning the entitlement of the first defendant to have retained the second defendant and to have paid him out of the estate. If the Registrar comes to the view that he cannot do so, then he may be able to recommend to the parties that they come back to the Court to deal with that and any other questions before the Registrar continues with his or her task. That will have the effect of enabling any further separate questions to be identified with greater precision by reference to the matters raised by the Registrar. 10Alternatively, the Registrar may proceed to deal with all matters, including legal questions, if he or she is minded so to do, in determining the Summons for accounts and commission. To the extent that any aspect of the Registrar's dealing with the Summons is unsatisfactory to any party, that can be the subject of an application for review which could be dealt with, if thought expedient, either before or during the determination of the other issues raised by the Amended Statement of Claim. That decision would have to abide by what precise issues had been raised by the Registrar or the precise issues a party or parties would wish to make the subject of an application for review of any decision by the Registrar. 11I understand from inquiries I have made of the Registry that any determination of the Summons for the taking of accounts and for commission can be done expeditiously. I will in due course direct that that is the manner in which the Registry should deal with it. That will ensure that the proceedings continue in a timely and informed fashion. I will also make directions for the parties to file such objections and submissions as they may be advised in relation to the determination of the Summons for accounts and commission. 12Finally, the parties accept that there may be some continuing utility in the matters raised by the second defendant's notice of motion which has brought the matter back before me today. For that reason I do not propose to dismiss that notice of motion at this stage. I will stand it over with the proceedings generally to a date before me some time hence with the intention that if the Registrar is able to determine the issues on the Summons earlier than the date that I fix, one or other of the parties will relist the matter before me to consider where the proceedings should go. This will be able to be done with the benefit of any issues raised by the Registrar or arising from any application that anyone would want to make by way of review of a decision of the Registrar. The parties accept this is the appropriate course and have agreed that the costs of today's motion be reserved. 13The orders of the Court are: (1)Grant leave to the plaintiff to issue a subpoena to the Australian Taxation Office returnable in the subpoena list on 10 March 2014. (2)Direct the Registrar to determine the Summons filed 1 March 2013 (the "Summons") on an expedited basis. (3)Direct the plaintiff to file and serve submissions and objections in relation to the Summons on or before 24 March 2014. (4)Direct the first defendant to file and serve submissions in relation to the objections and the Summons on or before 21 April 2014. (5)Reserve the costs of today. (6)Stand over the second defendant's motion filed 13 February 2014 and the proceedings generally to before Kunc J at 9.30am on 26 May 2014. (7)Order there be liberty to any party to apply to a Registrar in relation to the Summons on three days' notice. (8)Order there be liberty to any party to apply in relation to the Amended Statement of Claim on three days' notice by email to the Associate to Kunc J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2014