Nakad v Nakad [2023] NSWSC 228

Nakad v Nakad [2023] NSWSC 228

The correspondence between the parties formed a binding agreement: the Plaintiff withdrew her caveat in exchange for the Defendants' solicitor undertaking to hold the net proceeds of sale in trust pending the outcome of the Plaintiff's litigation. That undertaking was a pre-litigation inter partes undertaking, not an undertaking to the Court and not the basis of any interlocutory order. The Court therefore had no power to vary it on the analogy of an interlocutory injunction, and the supervisory jurisdiction over solicitors was not engaged because no misconduct or basis for punitive or compensatory supervision was shown. Even if inherent jurisdiction were engaged, the Defendants had not...

Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Equity Real Property List; Notice of Motion Concerning Variation or Discharge of a Solicitor's Pre Litigation Undertaking / Interlocutory Procedural Ruling on Defendants' Notice of Motion
Outcome
The Defendants' Notice of Motion was dismissed with costs.
Legal Topics
["solicitor's Inter Partes Undertaking" 'withdrawal of Caveat' 'trust Account Retention of Proceeds of Sale' 'inherent Jurisdiction' 'supervisory Jurisdiction Over Solicitors' 'interlocutory Injunction Analogy']
['civil Procedure' 'equity' 'real Property' 'legal Profession'] ["solicitor's Inter Partes Undertaking" 'withdrawal of Caveat' 'trust Account Retention of Proceeds of Sale' 'inherent Jurisdiction' 'supervisory Jurisdiction Over Solicitors' 'interlocutory Injunction Analogy']

Case Brief

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Procedural Posture

Equity Real Property List; Notice of Motion Concerning Variation or Discharge of a Solicitor's Pre Litigation Undertaking / Interlocutory Procedural Ruling on Defendants' Notice of Motion

Legal Issues

  1. 1 ["Whether a pre-litigation undertaking by the Defendants' solicitor to hold sale proceeds in trust pending the outcome of the Plaintiff's litigation could be varied or discharged by court order." 'Whether the undertaking was analogous to an interlocutory injunction such that the Court could vary it in the absence of an undertaking as to damages.' "Whether the Court's inherent or supervisory jurisdiction over solicitors was engaged to vary an inter partes pre-litigation undertaking." "Whether the Defendants should be permitted to use the proceeds held in the solicitor's trust account to fund their defence and any cross-claim."]

Ratio Decidendi

The correspondence between the parties formed a binding agreement: the Plaintiff withdrew her caveat in exchange for the Defendants' solicitor undertaking to hold the net proceeds of sale in trust pending the outcome of the Plaintiff's litigation. That undertaking was a pre-litigation inter partes undertaking, not an undertaking to the Court and not the basis of any interlocutory order. The Court therefore had no power to vary it on the analogy of an interlocutory injunction, and the supervisory jurisdiction over solicitors was not engaged because no misconduct or basis for punitive or compensatory supervision was shown. Even if inherent jurisdiction were engaged, the Defendants had not...

Court Disposition

The Defendants' Notice of Motion was dismissed with costs.

Orders

  • ["The Defendants' Notice of Motion filed 10 December 2022 is dismissed with costs." 'The matter is stood over for directions in the Real Property List on 31 March 2023.']