Nitopi v Translawcom Pty Ltd t/as Brander Smith McKnight

Supreme Court of NSW|2017-03-21|Before: Rothman J

Facts

The matter currently before the Court concerns the Respondent (the Plaintiff in the proceedings), who had engaged the legal services of the Applicant in October 2014 for two separate proceedings: 1. Equity proceedings 2014/327528 in which the Plaintiff acts as the Executor to the estate of the late Egidio Nitopi; and 2. Common Law proceedings 2015/94733.
However, in August 2016, the Respondent sought and gained alternate legal representation through the services of Streeterlaw to act on her behalf in both proceedings and to obtain the files from her previous legal representatives, the Applicant.
This current application arises from an alleged failure to adhere to Orders of the Court, issued by Justice Adamson by either or both parties.
It will be of assistance to set out the history of the matter. On 28 September 2016, Orders were made in terms with Short Minutes of Order, including that: "6. The defendant produce to the Court at 2pm on 30 September 2016: (a) All files and documents kept in regard to acting for the plaintiff in proceedings in this Division in case no 2015/94733; and (b) All files and documents kept in regard to acting for the plaintiff in proceedings in the Equity Division, Probate List of this Court in case no. 2014/327528."
On 30 September 2016, Adamson J made the following Orders in accordance with the tendered Short Minutes of Order: "Orders: (1) The defendant produce to the plaintiff the files and documents kept in regard to acting for the plaintiff in the Equity Division Probate List proceedings numbered 2014/327528 today. (2) The defendant produce to the plaintiff the files and documents kept in regard to acting for the plaintiff in this Division in proceedings numbered 2015/94733 upon the plaintiff paying $63,801.91 into Court on account of the costs and disbursements claimed by the defendant against the plaintiff for acting in the matter. (3) The proceedings be adjourned to the Registrar's list at 9.00am on 24 October 2016. (4) Vacate order 6 made on 28 September 2016. (5) Costs of these proceedings reserved. And the Court notes: (6) That the defendant's costs referred to in order 2, above, are to be assessed. (7) The plaintiff pay the monies referred to in order 2, above, into Court by 21 October 2016. (8) The defendant today had available for production to the Court the documents referred to in order 6 made on 28 September 2016."
On 30 September 2016, the Applicant delivered the Equity file to the Respondent's solicitors. The Respondent maintains that the entire file was not delivered and this issue was, at the date of this hearing, a live issue between the parties.
On 8 November 2016, the matter was before Registrar Bradford. It was noted that the Applicant said that they had complied with Order 1. It was also noted that the Respondent had not complied with Order 2.
On 18 November 2016, the Respondent filed a Notice of Motion seeking better enforcement of Order 1 of the 30 September 2016 Orders.
On 24 November 2016, the Applicant sought to stay the proceedings. Justice Davies ordered that if an application for stay of proceedings were to be made, a notice of motion and evidence in support would be required. Documentation in relation to the same was filed by the Applicant on 8 December 2016.
The Applicant's motion seeks to have the whole of the proceedings stayed due to the non-payment of money into Court by the Respondent.
The Applicant maintains that the physical file in the Equity proceedings was provided to the Respondent in accordance with the Orders of 30 September 2016. The Respondent, however, has not paid the money into Court in accordance with the Orders of the same date.

Submissions of the Applicant

The Applicant relied on the power of the Court to grant a stay of proceedings under section 67 of the Civil Procedure Act 2005: Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
The Applicant also relied on the reasons for judgment in Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, which confirm that the Court has an inherent jurisdiction to stay proceedings to secure compliance with its rules, orders and directions: see also Hadkinson v Hadkinson [1952] P 258.
In his Affidavit of 7 December 2017, Mark Roger Smith attests that he would not have consented to the Orders if it were not for the undertaking made by the Respondent (Affidavit of Mark Roger Smith, 7 December 2016 at [11]). Application is also made for rectification.
The Applicant denies that it did not comply with Order 1 of the Short Minutes of Order of 30 September 2016, in relation to providing the Equity file to the Respondent (Affidavit of Mark Roger Smith, 1 February 2017 at [6]). According to the Applicant, in accordance with the relevant Order, an employee of the Applicant delivered the file in relation to the proceedings no. 2014/94733 to the Respondent.
The Respondent, the Applicant submits, has not paid the money into Court (Affidavit of Mark Roger Smith, 7 December 2016, at [12] - [13]). There is no issue that the money has not been paid.
Counsel for the Applicant submitted that the Orders must be construed in conjunction with the surrounding circumstances of the matter (Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited; Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited (2015) 256 CLR 104; [2015] HCA 37 at [49]), and that the surrounding circumstances were that the parties were seeking to resolve the matter finally. Furthermore, the Applicant submitted that the Orders are expressed in mandatory terms, with no room for conditional compliance. Further, Note 7, which Counsel for the Respondent argued, at its highest, was an agreement between the parties, has all the force of an Order of the Court.

Submissions of the Respondent

The Respondent relied on adumbrated principles of interpretation to argue for a particular construction of the Orders 1 and 2 of 30 September 2016 Short Minutes of Order.
The Respondent submitted that the Orders, entered into by consent of both parties, are to be read so as to mandate that the payment of the money be linked to the proper provision of the documents in the Equity file, which it says has not been done. Further, the Notation is, at its highest, an agreement between the parties.
The Respondent, although not having paid the $63,801.91, maintained that the payment of the money was not a requirement that conditioned the provision of the file or gave rise to mutual obligations.
Counsel for the Respondent submitted: first, that the application for the stay, particularly over the Equity file, was an abuse of process; secondly, further and in the alternative, that Order 2, when interpreted with Note 7 of the Short Minutes of Order of 30 September 2016, should not be regarded as obligatory; thirdly, further and in the alternative, that the Notation does not have the force of an order and that it is, at its highest, an interparty agreement; fourthly, further and in the alternative, if there be an obligation which has the force of an order of the Court, then the breach of each party must be considered at the same time.
Counsel for the Respondent submitted that Orders, including Notations, of the Court should be interpreted in the same way as contracts: see Cassaniti v Paragalli [2006] NSWSC 50 at [15] and Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24. Utilising those principles in the construction of Order 2, it was submitted that the Orders imposed no obligation, other than an obligation on the Applicant conditional on the payment of the money, if paid. The Respondent submitted that the use of the word "upon" renders the Order conditional; the payment was an election to be exercised or a choice of the party; and the Notation provided a timeframe within which to exercise this election: see Victoria v Sutton (1998) 195 CLR 291 at [39] - [40]; [1998] HCA 56 as to the meaning of election or option. Counsel for the Respondent maintained that the Order could have been drafted in a different manner than it was, if it was intended to operate as the Applicant submitted. The agreement between the parties was that which was outlined within the Orders.

Principles for the Construction of Orders

The principles for construing orders of a court are the same as those that govern the construction of all documents. Ordinarily a "grammatical and ordinary meaning of the words" is given: Grey v Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234 (Lord Wensleydale's "Golden Rule"). Since 1857, a purposive approach has been preferred, but the purpose is that identified from the words of the instrument.
In construing any instrument, a court ought strive to achieve harmonious goals and avoid inconsistency. In so doing, it is necessary to consider the context of the words, the consequences of a literal or grammatical construction, the purpose of the instrument and any special or technical meaning that applies: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; [1998] HCA 28; see also Prenn v Simmonds [1971] 1 WLR 1381 at 1383-4; Purcell v Bacon (1914) 19 CLR 241 at 265; [1914] HCA 86. As made clear by the High Court (Isaacs, Gavan Duffy and Rich JJ) in Purcell, it is not for the court to re-write a contract on the basis of perceived, or even determined, subjective intention.

Consideration

Applying the ordinary rules to the Orders and bearing in mind that the parties obtained Consent Orders for the purpose of resolving most (but not all) of the issues between them, one must examine and construe the Orders of the Court issued as a result of the agreement of the parties. At least the assessment of costs in the Common Law matter remained outstanding.
Otherwise, the issues between the parties were resolved. The Respondent now says it no longer (if ever) wishes to have the file in the Common Law matter and, as a consequence, did not pay the money into Court. As earlier stated, the Respondent says the Notation does not oblige payment, but, if payment were made into Court, the Applicant would, thereupon, be obliged to deliver the Common Law file.
The difficulty with such a proposition is that it would defeat the purpose of resolving the issues between the parties. The justiciable controversy between the parties included a claim by the applicant for the payment of fees for work done and the Applicant's claim for a lien over the files in both the Equity and Common Law proceedings, until the fees were paid.
The Court noted the proposition that the Respondent pay the money into Court by 21 October 2016. If, as is suggested, no payment was, under the agreement between the parties, required, why would there be a date stated by which payment was to be made? I have taken the view that the clear intention of the parties, from the terms of the Orders, was that payment was to be made and, once made, the Common Law files were required to be delivered.
Further, the terms of the Notation recite a representation by the Respondent as to the Respondent's conduct and the date by which payment was to be made. That payment formed part of the consideration for the issuing of Consent Orders and the Applicant acted to its detriment by giving up the Equity file inconsistently with its claim. Having made the representation, the Respondent is estopped from denying its accuracy: Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 distinguishing Jorden v Money (1854) 5 HLC 185; Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7; Commonwealth v Verwayen (1990) 170 CLR 394 at 430 (Brennan J); 500 (McHugh J); [1990] HCA 39.
For the foregoing reasons, the Court, on 24 March 2017 issued the following orders: 1. Vacate Order 2 of 30 September 2016 and in lieu thereof insert a new Order 2 in following terms: 1. "The Plaintiff pay $63,801.91 into Court by 4pm 28 March 2017; 2. Upon payment into Court of the amount of $63,801.91 the Defendant shall produce to the Plaintiff the files and documents kept in regard to acting for the Plaintiff in this Division in proceedings 2015/94733 and in order to avoid any controversy, if payment is made in accordance with 2(a) above, the documents shall be produced on or before 12noon, 29 March 2017." 1. By 4pm, 29 March 2017, the Defendant shall file and serve a schedule of documents not produced to the Plaintiff as a result of the alleged compliance with Order 1 of the Orders of 30 September 2016 and all other evidence upon which the Defendant will rely on the motions. 2. By 4pm 29 March 2017, the Plaintiff shall file and serve all evidence upon which it would seek to rely in the hearing of the motions for the production of the remaining items. 3. By 4pm, 30 March 2017 the Plaintiff and Defendant shall file and serve a written outline of submissions. 4. The matter be listed for hearing before the Registrar at 9am Friday, 31 March 2017 for allocation of an urgent hearing. 5. Costs reserved. 6. Orders shall be entered forthwith.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2017

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