Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2015] NSWSC 587

Supreme Court New South Wales

Medium Neutral Citation: Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2015] NSWSC 587 Hearing dates: 30 April, 5 and 7 May 2015 Date of orders: 19 May 2015 Decision date: 19 May 2015 Jurisdiction: Equity Division Before: Robb J Decision: (1) I order that the defendants' notice of motion filed on 7 April 2015 is dismissed.

(2) I order the defendants to pay the plaintiff's costs of the notice of motion.

(3) I order that the exhibits may be returned forthwith in accordance with the Rules. Catchwords: EQUITY – mortgages – plaintiff was defendants' solicitor – deed of charge executed to secure payment of costs and disbursements payable to plaintiff – defendants executed a mortgage under the Real Property Act 1900 (NSW) in favour of plaintiff, as mortgagees, in respect of such costs – property was sold and the Court ordered an amount be paid by defendants into a controlled monies account – defendants seeks to have a portion of the controlled monies be withdrawn for purpose of defending their other unrelated legal proceeding – plaintiff's right to security under the deed could be jeopardised if paid out to defendants – cannot be excluded that plaintiff may be able to substantiate its costs claims against the defendants – defendants have not sufficiently established that they are unable to fund their defence from other sources – difficult for the Court in interlocutory proceedings to reduce the value of the security Legislation Cited: Contracts Review Act 1980 (NSW) Legal Profession Act 2004 (NSW) Real Property Act 1900 (NSW) Cases Cited: Clarke v Japan Machines (Australia) Pty Ltd (No 2) [1984] 1 Qd R 421 Goater v Commonwealth Bank of Australia [2014] NSWCA 265 Inglis v The Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Macleod v Jones (1883) 24 Ch D 289 Nemeth v Reachcord Pty Ltd (1998) 9 BPR 16,557 Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2012] NSWSC 1604 Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2013] NSWSC 174 Category: Procedural and other rulings Parties: Phoenician Holdings Pty Ltd T/as Cadmus Lawyers (Plaintiff/Respondent)