Ellimark Pty Ltd v Calvo [2015] NSWSC 1240

Supreme Court New South Wales

Medium Neutral Citation: Ellimark Pty Ltd v Calvo [2015] NSWSC 1240 Hearing dates: 18, 19, 25 and 26 May 2015 Written submissions 12 June 2015 Date of orders: 31 August 2015 Decision date: 31 August 2015 Jurisdiction: Equity Before: Bergin CJ in Eq Decision: Plaintiff entitled to specific performance of Deed. Defendants' claims dismissed as against plaintiff. Defendants' claims against former solicitor to set aside various contracts upheld. Former solicitor's claim for specific performance dismissed. Catchwords: DEEDS – construction – whether unfair in all the circumstances – where former solicitor claims entitlement to transfer of shares the subject of litigation in which solicitor retained – whether various agreements between solicitor and former client unfair in all the circumstances – whether solicitor's conduct unconscionable.

LEGAL PROFESSION – whether certain documents are conditional costs agreement for the purposes of the Legal Profession Act 2004 – whether void for non-compliance with the Act – whether contingency fee – whether void.

ESTOPPEL – whether former solicitor is estopped from claiming fees or costs by reason of conduct in failing to produce tax invoice until 6 years after the litigation. Legislation Cited: Contracts Review Act 1980 Legal Profession Act 2004 Legal Profession Uniform Law (NSW) 2014 Trade Practices Act 1974 (Cth) Cases Cited: Bolitho v Banksia Securities Limited (No 4) [2014] VSC 582 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Calvo v Sweeney [2009] NSWSC 719 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Hart v MacDonald (1910) 10 CLR 417 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41 Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Category: Principal judgment Parties: Ellimark Pty Limited (Plaintiff; 1st Cross-Defendant to First Cross-Claim) Athalie Calvo as Executrix of the Estate of the late Peter Calvo (1st Defendant) Athalie Calvo (2nd Defendant; Cross-Claimant to the First and Third Cross-Claims) Leigh Johnson (2nd Cross-Defendant to First Cross-Claim; Cross-Claimant to the Second Cross-Claim; Cross-Defendant to the Third Cross-Claim) Representation: Counsel: GKJ Rich SC/SA Lawrance (Plaintiff; 1st Cross-Defendant to First Cross-Claim) CRC Newlinds SC/P Newton (1st and 2nd Defendant; Cross-Claimant to the First and Third Cross-Claims) TS Hale SC/PR Nagle (2nd Cross-Defendant to First Cross-Claim; Cross-Claimant to the Second Cross-Claim; Cross-Defendant to the Third Cross-Claim)