Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727

Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727

There is no justification for ordering that interlocutory costs be paid forthwith where the application for adjournment was not a delaying tactic or result of reprehensible conduct and the delay is not substantial. Where a solicitor terminates a retainer, the general rule requiring production of client's papers on undertaking should apply absent exceptional circumstances.

Parties
First Applicant: Patrick Campbell Rafferty; Second Applicant: Santora Holdings Pty Limited ACN 128 467 550; Third Applicant: Karaville Holdings Pty Limited ACN 009 439 178; First Respondent: Time 2000 West Pty Limited ACN 127 893 270; Second Respondent/second Cross Claimant: Time 2000 Systems (Australia) Pty Limited ACN 127 853 614; Third Respondent/third Cross Claimant: Time 2000 Operations (Australia) Pty Limited; Fourth Respondent/fourth Cross Claimant: Embleton Limited (A Company Incorporated in Hong Kong); Fifth Respondent/first Cross Claimant: Stephen Gerard Donovan; Cross Respondent: Madgwicks (A Firm)
Jurisdiction
Australia
Judgment Date
09 July 2009
Procedural Posture
Civil / Interlocutory (costs and Production of Documents Applications)
Outcome
Application for order that costs be paid forthwith refused; order for production of papers granted.
Legal Topics
Costs (interlocutory), Freezing Orders, Solicitor's Lien, Production of Documents, Franchising Code of Conduct
Civil Procedure Legal Practice Trade Practices Costs (interlocutory) Freezing Orders Solicitor's Lien Production of Documents Franchising Code of Conduct

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Parties

Patrick Campbell Rafferty

First Applicant

Santora Holdings Pty Limited ACN 128 467 550

Second Applicant

Karaville Holdings Pty Limited ACN 009 439 178

Third Applicant

Time 2000 West Pty Limited ACN 127 893 270

First Respondent

Time 2000 Systems (Australia) Pty Limited ACN 127 853 614

Second Respondent/second Cross Claimant

Time 2000 Operations (Australia) Pty Limited

Third Respondent/third Cross Claimant

Embleton Limited (A Company Incorporated in Hong Kong)

Fourth Respondent/fourth Cross Claimant

Stephen Gerard Donovan

Fifth Respondent/first Cross Claimant

Madgwicks (A Firm)

Cross Respondent

Procedural Posture

Civil / Interlocutory (costs and Production of Documents Applications)

Legal Issues

  1. 1 Whether the second to fifth respondents should pay the applicants' costs of the notice of motion dated 8 October 2008 forthwith
  2. 2 Whether the cross-respondent (Madgwicks) should produce client papers to new solicitors after termination of retainer

Ratio Decidendi

There is no justification for ordering that interlocutory costs be paid forthwith where the application for adjournment was not a delaying tactic or result of reprehensible conduct and the delay is not substantial. Where a solicitor terminates a retainer, the general rule requiring production of client's papers on undertaking should apply absent exceptional circumstances.

Court Disposition

Application for order that costs be paid forthwith refused; order for production of papers granted.

Orders

  • The second to fifth respondents pay the applicants' costs of the notice of motion dated 8 October 2008.
  • Madgwicks produce to Cowell Clarke within 7 days all documents relating to the proceedings, including pleadings, affidavits, orders, transcript, discovered documents, and other relevant files, upon undertaking to return them at the conclusion of the proceedings.