Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lawrence v Gunner [2016] NSWCA 216 Hearing dates: 18 August 2016 Decision date: 18 August 2016 Before: Gleeson JA Decision: (1) Appeal allowed. (2) Set aside the judgment and orders of Stevenson J of 16 July 2015 and of 21 August 2015 (with the exception of orders 6, 8, 9 and 10 made 21 August 2015). (3) Order that there be no order as to the costs of the proceedings No. SC 2012/277403 in the court below nor of this appeal. (4) Otherwise the Further Amended Statement of Claim and Cross Claim stand dismissed. (5) Notations A. These orders reflect the parties' compromise of these proceedings following successful Alternative Dispute Resolution. B. These orders including the Notations are without prejudice to such claims under s 99 of the Civil Procedure Act 2005 (NSW) as the parties may be advised to make, including any such claims which may be made against 3rd parties. Catchwords: PRODEDURE - Judgments and orders – amending, varying and setting aside – consent orders Legislation Cited: Civil Procedure Act 2005 (NSW), ss 99, 100 Supreme Court Act 1970 (NSW) s 46 Cases Cited: Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229 Category: Procedural and other rulings Parties: Wayne Lawrence (First Appellant) Valerie Lawrence (Second Appellant) Frances Beatrice Gunner (Respondent) Representation: Counsel: Mr PE King (Appellants) Mr PB McKell (Solicitor) (Respondent) Solicitors: Priest Legal (Appellants) McKells Solicitors (Respondent) File Number(s): 2015/258609 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2015] NSWSC 944; [2015] NSWSC 1229 Date of Decision: 16 July 2015; 21 August 2015 Before: Stevenson J File Number(s): 2012/277403 [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.] Judgment 1. GLEESON JA: This appeal concerns judgments of Stevenson J given on 16 July 2015 and 21 August 2015: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 and [2015] NSWSC 1229. 2. It is convenient to set out the orders made by Stevenson J on 21 August 2015, which are the subject of the appeal: 1. The further amended statement of claim be dismissed. 2. Judgment that the plaintiffs/cross-defendants pay the defendant/cross-claimant $315,000. 3. Order, pursuant to s 100 of the Civil Procedure Act 2005, that the plaintiffs/cross-defendants pay interest to the defendant/cross-claimant on the judgment referred to in order 2 at the rates set forth in Uniform Civil Procedure Rules r 36.7 from 1 March 2012. 4. Order that the proceedings RT 12/15580 and RT 12/09391 transferred to the Court from the CTTT by reason of the order made by the CTTT on 12 September 2012 and remitted NCAT to be dealt with by NCAT in light of the reasons given in these proceedings on 16 July 2015 in Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944. 5. Grant liberty to the parties to apply for such further orders as may be required arising out of NCAT's consideration of the matter. 6. Order that the further amended cross-claim be otherwise dismissed. 7. Order that the plaintiffs/cross-defendants pay 95 per cent of the defendant/cross-claimant's costs of the proceedings (other than the costs of preparation of affidavits of any witness not called to give evidence other than affidavits prepared solely for the purpose of an interlocutory application) on a party-party basis until 2 August 2013 and on an indemnity basis thereafter. 8. Grant leave to the defendant/cross-claimant to apply to the Registrar, on seven days' notice, in respect of the funds paid into Court by the plaintiffs/cross-defendants as security for costs, such notice not to be exercised until the defendant's/cross-claimant's costs have been assessed or agreed. 9. Order that order 2 be stayed up to and including 5pm on 7 September 2015. 10. The exhibits and subpoenaed material be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. 1. The appeal was before the Court for directions on 15 August 2016. On that occasion, Mr PE King, of counsel, appeared for the appellants, Mr Wayne Lawrence and Mrs Valerie Lawrence, and Mr P McKell, solicitor, appeared for the respondent, Mrs Frances Gunner. The Court was informed that the parties had compromised the proceedings following successful alternative dispute resolution. The respondent had agreed that the appeal be allowed and the parties requested the Court to make orders by consent. 2. After the Court raised queries in relation to the specificity and appropriateness of some of the proposed orders, it became apparent that insufficient attention had been given to their form. The proceedings were stood over to 18 August 2016 to allow the parties' representatives further time to consider the form of the proposed consent orders. 3. This morning, the parties' legal representatives appeared as before and handed up proposed short minutes of order, signed by the parties and dated 18 August 2016, which provided: By consent, the Court orders: 1. Appeal allowed. 2. Set aside the judgment and orders of Stevenson J of 16 July 2015 and of 21 August 2015 (with the exception of orders 6, 8, 9 and 10 made 21 August 2015). 3. Order that there be no order as to the costs of the proceedings No. SC 2012/277403 in the court below nor of this appeal. 4. Otherwise the Further Amended Statement of Claim and Cross Claim stand dismissed. 5. Remit the matter to the Equity Division before the Chief Judge, for directions and further conduct with respect to any application as one or more of the parties are disposed to make under s 99 of the Civil Procedure Act 2005 (NSW) and such further or other orders as the Court considers appropriate. Notations A. These orders reflect the parties' compromise of these proceedings following successful Alternative Dispute Resolution. B. These orders including the Notations are without prejudice to such claims under s 99 of the Civil Procedure Act 2005 (NSW) as the parties may be advised to make, including any such claims which may be made against 3rd parties. 1. The practical effect of the consent orders is that the money judgment for $315,000 in Mrs Gunner's favour against Mr and Mrs Lawrence will be set aside, and each party will bear their own costs of the proceedings below and in this Court. The intended effect of proposed order 5 is said to be to facilitate an application by Mrs Gunner against Mr Tony Marshall, her former solicitor in the proceedings below, under s 99 of the Civil Procedure Act 2005 (NSW) and any other claim for damages which may arise as a result of such application. Mr and Mrs Lawrence also indicated an intention to make an application against Mr Marshall under s 99 of the Civil Procedure Act. The parties did not address the question of whether s 99 permits such an application by one party against another party's solicitor, or whether it is necessary to rely upon the court's inherent powers to control the conduct of solicitors as officers of the court: see Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [16] - [20]. 2. The difficulty with the proposed remittal of the proceedings to the Equity Division is that the subject matter of the appeal does not include any claim against the former solicitor under s 99 or otherwise. Accordingly, there is nothing to remit. After the Court identified this difficulty, the parties agreed to delete proposed order 5. 3. Two other matters call for brief comment. The reference to order 7 made on 21 August 2015 (dealing with costs below), in the exclusions in proposed order 2 (which provides that the orders of 21 August 2015 are to be set aside), is inconsistent with proposed order 3 (that each party pay their own costs below). The parties agreed to delete the reference to order 7 in the exclusions to proposed order 2. 4. The parties also agreed to add a reference to orders 4 and 5 made on 21 August 2015, to the exclusions in proposed order 2. Those orders concerned a claim by Mrs Gunner for possession of a property at 134 Clontarf Street, which was remitted to the New South Wales Civil and Administrative Tribunal (NCAT) for the making of orders terminating the residential tenancy agreement and for possession. Orders to that effect were subsequently made by NCAT. There is no utility in setting aside the remittal of that part of the proceedings to NCAT. 5. The orders being by consent, a single Judge of Appeal has power to make the proposed orders: s 46(1)(a) of the Supreme Court Act 1970 (NSW). 6. Accordingly, the Court makes the following orders and notations, by consent, in accordance with the short minutes of order dated 18 August 2016 as amended and signed by the parties legal representatives and initialled by me: 1. Appeal allowed. 2. Set aside the judgment and orders of Stevenson J of 16 July 2015 and of 21 August 2015 (with the exception of orders 6, 8, 9 and 10 made 21 August 2015). 3. Order that there be no order as to the costs of the proceedings No. SC 2012/277403 in the court below nor of this appeal. 4. Otherwise the Further Amended Statement of Claim and Cross Claim stand dismissed. 5. Notations A. These orders reflect the parties' compromise of these proceedings following successful Alternative Dispute Resolution. B. These orders including the Notations are without prejudice to such claims under s 99 of the Civil Procedure Act 2005 (NSW) as the parties may be advised to make, including any such claims which may be made against 3rd parties. ********** 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: 18 August 2016