Despite a setback earlier this week, Mackay Goodwin principal Dominic Calabretta is reportedly heading back to court today to continue the pursuit of a costs order won by a former client of his appointor, lawyer Farshad Amirbeaggi of Yates Beaggi Lawyers (YBL).
“Counsel were unable to locate, and I have also been unable to find, any case in which the appointment of a receiver had been previously accepted, where it was sought to be achieved by novating an agreement that invalidly appointed that receiver to a new entity that could have, but had not previously, appointed that receiver.” NSW Supreme Court judge Ashley Black.
The setback occurred on Monday when Calabretta failed in an application to rectify his invalid appointment as the receiver of the assets of one Michelle Harris.
A former client of Amirbeaggi’s, Harris previously won a costs order in the long running and sorry saga of Sirrah Pty Ltd, Harris Health Care Pty Ltd and the much divided Harris family.
Ms Harris’s costs were however hard won, requiring Amirbeaggi’s services in the sum of $468,566, though In the matter of Sirrah Pty Ltd [2024] NSWSC 953 NSW Supreme Court judge Ashley Black queried that amount given Harris deposed for the purposes of the application to “receiving tax invoices totalling $444,274.62 from “YBL””.
Pursuant to a Legal Services Agreement and Costs Disclosure issued by YBL and signed by Harris on June 12, 2020, Harris pledged her assets as security for Amirbeaggi’s fees.
Unfortunately for Amirbeaggi – Calabretta is indemnified again the adverse costs order made on Monday – changes the YBL principal made to the corporate entities operating his legal practice came back to bite him thanks to what the court was told by Calabretta’s counsel Bridie Nolan was a “clerical error”.
The upshot was that an entity that wasn’t entitled to appoint Calabretta as receiver of Ms Harris’s property pursuant to the LSA did so and Calabretta’s application to cure that invalidity via a deed of novation was on Monday refused.
“Counsel were unable to locate, and I have also been unable to find, any case in which the appointment of a receiver had been previously accepted, where it was sought to be achieved by novating an agreement that invalidly appointed that receiver to a new entity that could have, but had not previously, appointed that receiver,” Justice Black said.
“I therefore approach the question whether a receiver can be validly appointed in that manner as a matter of first impression.
“I am not persuaded that principles of novation should be extended beyond the existing case law to allow the appointment of a receiver, from an uncertain date, in this obscure fashion, and I am satisfied that the Court should not extend the operation of those principles in that way,” the judge said.
“I reach that result because the appointment of a receiver, whether to property of an individual or property of a corporation, has a public character, even when made under an instrument, and is not merely the private act of the contracting parties.
“The person to whose property the receiver is appointed, the community and the Court must be able to determine whether and when that appointment took effect, and I do not consider that there is any reason to extend principles of novation to permit the appointment of a receiver in a manner that is likely to, and here does, obscure the answer to those fundamental questions.
The judge dismissed Calabretta’s application and ordered that he pay the costs of the plaintiffs in the primary proceedings who were required to respond and to Alan Hayes, liquidator of Sirrah who was initially wrongly joined as a defendant.
But late yesterday Amirbeaggi, in confirming that he was indemnifying Calabretta, said that a “fresh appointment”, presumably valid, would be made today and a new Interlocutory Process “for the same relief” was to be filed.
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