Provident Capital v Anderson [2013] NSWSC 705

The borrower retained a dodgy solicitor on 8 May 2013 who immediately wrote (but did not send) a letter to the lender alleging that it had not complied with the Farm Debt Mediation Act and that the consent orders for possession was therefore void.

The borrower put together a posse returned to the property, where he waved the letter about and intimidated the caretaker of the property.

Upon discovering what had occurred the lender obtained an urgent injunction preventing the borrower from entering the property. The lender then asked the court to make a personal costs order against the solicitor who drafted the letter.

The judge stated that orders of the Supreme Court are valid unless and until set aside, irrespective of whether the farm debt argument might have been a basis to apply to set aside the consent orders.

The judge decided that the solicitor had in fact never sent the letter in question but had given it to his client knowing or strongly suspecting that it would be used in an attempt to evict the lender’s representatives from the property.

The judge also found that the solicitor was reckless as to whether or not it was in fact true that the Supreme Court orders were deemed to be void. If it were not for this letter, the judge decided, the borrower would not have returned to the property as he did.

The judge found that this was “serious misconduct”, that it had caused the lender to incur costs by bringing the application for the injunction, and that it justified the making of a costs order against the solicitor on an indemnity basis.

The solicitor had further bad news mid-way through the hearing when his practicing certificate was suspended for misappropriation of clients trust funds.

Click here to read the full judgment

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