21 Jul 2023
Indemnity costs were not awarded because there was insufficient tested evidence of improper purpose or gross negligence; however increased costs were appropriate because the plaintiffs unreasonably resisted the strike-out application and failed to accept a legal argument, therefore plaintiffs must pay costs on a 2B scale with a 50% uplift, plus disbursements.
17 Apr 2023
The undertaking's purpose was frustrated by the passage of time and intervening events (including Rocky Peaks being struck off the Companies Register) such that it was unreasonable to require the solicitor to continue to hold the funds; accordingly the solicitor is released from the undertaking and the funds (with accrued interest) must be paid to the trustees entitled to them.
28 Mar 2023
Extension of time to appeal was refused because the short delay (21 working days) and lack of prejudice did not outweigh the clear lack of merit in the proposed appeal; the High Court had dealt with the only live issue on the pleadings and the proposed grounds relied on abandoned arguments (arbitration) and were therefore hopeless.
7 Jul 2022
Leave to commence the proceeding under Part 19 was granted because the core issue is the interpretation and discharge of a short solicitor's undertaking, the matter is discrete and suitable for originating application without detailed pleadings, affidavit evidence suffices, no unfair prejudice would result, and service on Claymore Partners was appropriate and to be deemed service on Ms Marchi with 10 working days to file any opposition.
27 Oct 2017
Given reliable independent PwC tax advice that, on the applicant's and group's current structure and foreseeable circumstances, the Impact Fitness tax losses could not be used, LMLW was acting reasonably in instructing payment under the plain terms of the undertaking; Armstrong Murray's reliance on its client's contrary instructions does not excuse non‑compliance with the undertaking; therefore there is no real defence and summary judgment is appropriate.
11 Jul 2017
Because the vendors failed to obtain the required code compliance certificate, did not perform their contractual obligations and did not participate in proceedings, the solicitor was discharged from his undertaking and the retained funds were ordered paid into Court to be held on interest pending any claim by the respondents; applicants were granted leave to seek judgment for damages and to enforce any judgment against the funds.
9 Dec 2015
The Registrar did not err; there were no exceptional circumstances to dispense with security, the appellants are not impecunious, the undertaking was inadequate as a substitute for paid security, and security for costs of $6,600 must be paid into Court within 20 working days.
30 Sept 2015
Summary judgment dismissed because plaintiff failed to prove defendant had no arguable defence: a one‑day denial of access did not, on the evidence, constitute repudiation or breach of an essential term nor satisfy the substantiality threshold under s 7(4)(b); accordingly funds must remain held under the solicitor's undertaking pending further order or trial.
31 Aug 2015
The undertaking was given to secure a commercial adjustment that has not been pursued for over six years; the purpose of the undertaking has been frustrated, potential claimants are effectively statute-barred and one claimant's company has been struck off, no opposition was filed after proper service, and therefore it is equitable and appropriate to discharge AWS Legal from its undertaking and permit release of the trust funds.
8 May 2015
The impugned Family Court decisions were quashed because Mr Zhao and his firm had a material interest in the trust funds (a contractual lien for fees and a solicitor's undertaking) and were not given notice or an opportunity to be heard; the Court also failed to take those relevant matters into account, rendering the 23 December 2014 order and subsequent sealing and contempt‑related fixtures procedurally unlawful; accordingly those decisions were set aside and a substituted payment order was made, with a partial discharge of the undertaking.