Acorn Lawyers Pty Limited v Tisdale

[2017] NSWSC 1494

Supreme Court

New South Wales

Medium Neutral Citation:	Acorn Lawyers Pty Limited v Tisdale [2017] NSWSC 1494
Hearing dates:	25 October 2017
Date of orders:	25 October 2017
Decision date:	25 October 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Direct Counsel to bring in short minutes of order;  (2) List the summons at 10am, 1 November 2017 before the Common Law Duty Judge.
Catchwords:	CIVIL PROCEDURE – Leave to file initiating process – Where plaintiff a solicitor asserting lien over settlement sum of former client – Leave granted
Category:	Procedural and other rulings
Parties:	Acorn Lawyers Pty Limited (Plaintiff, Applicant) Mr Terrence Tisdale (1st Defendant, 1st Respondent)
Representation:	Counsel: A Spencer (2nd and 3rd respondents to the motion)   Solicitors: Acorn Lawyers (Plaintiff and applicant)
File Number(s):	2017/322360
Publication restriction:	Nil

ex tempore Judgment (revised)

1. This is an application for leave to file in Court a summons and supporting affidavit by a solicitors’ practice, to put it generally, seeking to assert a lien over the fruits of a settlement of litigation arrived at by deed made on 31 July 2017 which is Exhibit 1 before me.

2. There are three defendants or respondents to the summons. The first, Mr Tisdale, is the former client of the solicitors, and the second and third respondents are the defendants in the settled litigation brought on behalf of the former client. They have entered into the deed and agreed to pay, in settlement of the litigation, a sum of $XXX inclusive of costs. The second and third respondents are represented here today by Mr Spencer of Counsel who is not instructed to consent to these orders but, in the best traditions of the Bar, has engaged very helpfully with the appropriate orders that perhaps should be made by the Court at this stage.

3. Mr Tisdale has not appeared (I will have him called outside now) but I am comfortable from Exhibit A that he is aware that the application to file the documents and for short service would be made in court today and I think in those circumstances it is appropriate to proceed, so far as he is concerned, ex parte.

4. I am satisfied on the basis of Mr Govan’s affidavit (the principal of the solicitors’ practice who brings the application) that he has an arguable case to assert the lien and I am satisfied, on hearing Mr Spencer of Counsel, that it is appropriate that the matter be brought back before the Court in the near future to avoid his clients unwittingly falling into default of their obligations under the deed.

5. The orders which are proposed to be made, which I will make, include an order that an amount sufficient to cover the costs estimated by Mr Govan in his affidavit should be paid into Court on or before 1 November from the settlement sum. That order should be made on the basis of Mr Govan’s undertaking as to damages which is set out in his affidavit. I have given some directions about the form which the order should take which the parties will attend to and I will make the final orders in Chambers.

6. To make matters quite clear, I am bringing the proceedings back before the Common Law Duty Judge at 10am on 1 November 2017 when it is to be expected that the first defendant will appear.

7. Given the order I will make requiring payment into Court, I think it also appropriate to otherwise dismiss the proceedings against the second and third respondents with no order as to costs as they will have no further legitimate interest in the proceedings and there is no reason why they should be further inconvenienced by continued involvement in them.

8. I note the agreement that the parties also have reached as to the release from an undertaking properly given by the second and third respondents which will also be recorded in the short minutes.

9. I direct the parties to forward short minutes of order in accordance with the indications I made during the course of argument to my associate today and I will make those orders in Chambers without the need for Mr Govan or Mr Spencer to appear again.

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Decision last updated: 02 November 2017