Lake Macquarie Conveyancing Pty Ltd v Carr [2021] NSWSC 1295

Lake Macquarie Conveyancing Pty Ltd v Carr [2021] NSWSC 1295

As the proceedings were commenced and carried on without full compliance with the Uniform Civil Procedure Rules 2005 (NSW), specifically rr 7.1 and 7.2 (as neither Mr Whitehall nor any director with a personal cause of action was named as a plaintiff, nor were the required affidavits filed at commencement), and there being no exceptional circumstances justifying a departure from these rules, the Court held that the first plaintiff must be given a final opportunity to obtain independent legal representation. The proceedings were stayed for 28 days to permit this, with liberty to the defendants to have the matter dismissed if no solicitor appears within that period.

Parties
First Plaintiff: Lake Macquarie Conveyancing Pty Ltd; Second Plaintiff: Lorraine Berry; First Defendant: Amanda May Carr; Second Defendant: Brett Richmond Carr; Third Defendant: 3C Conveyancing Pty Ltd (Deregistered)
Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Equity Application (duty List) / Interlocutory Application; Orders Following Motion by Defendants Regarding Representation and Compliance With Procedural Rules
Outcome
Proceedings stayed for 28 days to allow first plaintiff to engage independent legal representation. Liberty to the defendants to move to dismiss if no notice of appearance is filed within 28 days. Plaintiffs ordered to pay defendants' costs of the motion.
Legal Topics
Company Representation in Proceedings, Constructive Trusts, Interlocutory Relief, Caveats Over Land
Civil Procedure Equity Company Representation in Proceedings Constructive Trusts Interlocutory Relief Caveats Over Land

Case Brief

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Parties

Lake Macquarie Conveyancing Pty Ltd

First Plaintiff

Lorraine Berry

Second Plaintiff

Amanda May Carr

First Defendant

Brett Richmond Carr

Second Defendant

3C Conveyancing Pty Ltd (Deregistered)

Third Defendant

Procedural Posture

Equity Application (duty List) / Interlocutory Application; Orders Following Motion by Defendants Regarding Representation and Compliance With Procedural Rules

Legal Issues

  1. 1 Whether proceedings were properly commenced and carried on by a director not named as a plaintiff under Uniform Civil Procedure Rules 2005 (NSW) rr 7.1-7.2;
  2. 2 Whether leave should be granted for a company director to represent the company in Supreme Court proceedings;
  3. 3 Compliance with procedural rules as to director affidavits and personal causes of action;

Ratio Decidendi

As the proceedings were commenced and carried on without full compliance with the Uniform Civil Procedure Rules 2005 (NSW), specifically rr 7.1 and 7.2 (as neither Mr Whitehall nor any director with a personal cause of action was named as a plaintiff, nor were the required affidavits filed at commencement), and there being no exceptional circumstances justifying a departure from these rules, the Court held that the first plaintiff must be given a final opportunity to obtain independent legal representation. The proceedings were stayed for 28 days to permit this, with liberty to the defendants to have the matter dismissed if no solicitor appears within that period.

Court Disposition

Proceedings stayed for 28 days to allow first plaintiff to engage independent legal representation. Liberty to the defendants to move to dismiss if no notice of appearance is filed within 28 days. Plaintiffs ordered to pay defendants' costs of the motion.

Orders

  • Stay the proceedings for 28 days to permit the first plaintiff to engage and retain independent legal representatives to act on behalf of the first plaintiff in the proceedings.
  • Grant liberty to the defendants, if a notice of appearance by a solicitor on behalf of the first plaintiff is not filed within 28 days, to move to have the summons dismissed.