(ii) The cross defendants had no entitlement to resist production of documents required for the purposes of litigation or costs assessment by claim or exercise of lien or otherwise in the circumstances of termination of their retained in December 2006 and/or in the face of offers of undertakings or provision of security in respect of their claimed lien and claim for payment of their claimed costs including an offer by the cross claimant's solicitors on 27 and 28 August 2007 to undertake to enter into a deed in the form approved by the Law Society of New South Wales that would allow access to the property being the documents concerning the services on a more general basis including in relation to the 3383/07 proceedings (refer pages 42 and 51 of Annexure A), to which the cross defendants did not respond."
37 The pleading was completed by the clients alleging that judgment was entered against the clients in the Queensland proceedings "as a consequence of" the alleged wrongful detention. The clients claim in the final cross claim that the misrepresentation claim, the waiver claim and the wrongful detention claim all resulted in losses to the clients. The final cross claim pleads these various losses as, the costs orders made against the clients in the Queensland proceedings, the adverse assessment of damages in the Queensland proceedings by Martin J on 19 November 2007 in the amount $390, 583.93, and finally the making of orders for specific performance of the joint venture in the Queensland proceedings without the clients being able to set off against those orders either of the Business in Focus or Welbon claims for costs and overruns, contributed by them to the joint venture in the order of $800,000, or the amount of the Begun Value loan of $500,000. Finally, the clients say that they were denied the opportunity to have their defence or any cross claim in the Queensland proceedings heard and determined and the consequent opportunity to achieve a better outcome in those proceedings.
38 The firm's liability to the clients is said to arise from the statutory remedies under s 52 of the Trade Practices Act 1974 (Cth) in respect of the practice corporation and under s 42 of the Fair Trading Act 1987 (NSW) in the case of both cross defendants. A separate allegation is made in respect of the firm's attempts to enforce the determinations in the costs assessment proceedings 268 of 2007. The clients' allegation is that to do so in the circumstances would be unconscionable.
The Notices to Produce
39 Both the firm and the client issued notices to produce on the hearing of the motions in the proceedings. The firm's notice to produce sought production of all communications between Mr Burton SC and Mr Hall about the adequacy of the particularisation of the final form of the cross claim. The clients' notice to produce sought production of documents that were used by the firm to answer the clients' exemplary damages case.
40 In the course of the hearing, the parties resolved outstanding issues in respect of the notices to produce. Both sides agreed not to call on the notices to produce to the other. As a result of this judgment there may be no further need to call upon these notices.