Bechara v Atie

Case [2005] NSWCA 268
CITATION:

Bechara t/as Bechara & Co v Atie & Anor [2005] NSWCA 268
HEARING DATE(S):

26 July 2005
 
JUDGMENT DATE: 


15 August 2005

JUDGMENT OF:

Ipp JA at 1; Tobias JA at 2; McColl JA at 3
DECISION:

(1) Grant leave to appeal, on condition that the claimant file the Notice of Appeal within 14 days of these orders.; (2) Appeal allowed. (3) Set aside the order for costs made against the claimant by his Honour Judge O'Connor on 6 August 2004. (4) First opponent to pay the claimant's costs of the appeal and the costs below but to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
CATCHWORDS:

SOLICTOR - COSTS - lien - delivery of former client's papers to new solicitor - Solicitors Rules- whether solicitor's undertaking satisfactorily secured payment of former solicitor's costs and disbursements (D)
LEGISLATION CITED:

District Court Act 1973
District Court Rules 1973
Legal Profession Act 1987
Solicitors Rules
CASES CITED:

Barratt v Gough-Thomas [1951] Ch 242
Bolster v McCallum (1966) 85 WN (Pt 1) (NSW) 281
Caldwell v Sumpters (a firm) [1972] 1 Ch 478
Doyles Construction Lawyers v Harsands Pty Ltd (McLelland CJ in Eq, Supreme Court of New South Wales, unreported, 24 December 1996; BC9700247)
Firth v Centrelink (aka the Dept of Social Security (No 2)) [2002] NSWSC 850; (2002) 55 NSWLR 494
Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614
Hughes v Hughes [1958] P 224
In re Will of Gilbert (decd) (1946) 46 SR (NSW) 318
Jankowski v Mastoris (1995) 7 BPR 14,589
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
Major Projects Pty Ltd v Sibmark Pty Ltd [1992] ANZ ConvR 349
McLeish v Palmer (1921) 22 SR (NSW) 53
Newcastle City Council v McShane (No 2) [2005] NSWCA 250
Re Barrister & Solicitor; Re Legal Practitioners Ordinance 1970 (ACT) (1979) 40 FLR 26
Re Bevan & Whitting (1864) 33 Beav 439; (1864) 55 ER 438
Re Castle (1867) 6 SCR (NSW) L 195
Re Galland (1885) 31 Ch D 296
Re Jewitt (No 2) (1864) 34 Beav 22; (1864) 55 ER 539
Richards v Platel (1841) Cr & Ph 79
Robins v Goldingham (1872) LR13Eq 440
White v Bini [2003] FCA 669
PARTIES:

Maria Bechara t/as Bechara & Co (Claimant)
Badia Atie (First Opponent)
The Housing Commission of New South Wales (t/as NSW Land & Housing Commission) (Second Opponent)

FILE NUMBER(S):

CA 40720/04
COUNSEL:

S Galitsky (Claimant)
L M Morris QC/G R Travers (First Opponent)
Submitting appearance (Second Opponent)
SOLICITORS:

Bechara & Company Solicitors (Claimant)
Wyatt Attorneys (First Opponent)
McCabe Terrill Solicitors (Second Opponent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 7639/02

LOWER COURT JUDICIAL OFFICER:

O'Connor DCJ




                          CA 40720/04
                          DC 7639/02

                          IPP JA
                          TOBIAS JA
                          McCOLL JA

                          Monday, 15 August 2005
BECHARA t/as BECHARA & CO v ATIE & ANOR

The first opponent retained the claimant as her solicitor in respect of personal injury proceedings she brought against the second opponent in the…

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AGLC
Bechara v Atie [2005] NSWCA 268
Case
[2005] NSWCA 268
Decision Date

CaseChat Overview and Summary

The dispute in *Bechara v Atie* concerned a solicitor's lien over a former client's papers. The claimant sought the delivery of these papers to their new solicitor, arguing that the former solicitor's undertaking was sufficient security for their outstanding costs and disbursements. The matter came before the Court of Appeal of New South Wales, comprising Ipp, Tobias, and McColl JJA.

The central legal issue before the Court of Appeal was whether the undertaking provided by the claimant's new solicitor adequately secured the payment of the former solicitor's costs and disbursements, thereby justifying the release of the client's file. This required the court to consider the adequacy of the security offered in light of the principles governing a solicitor's lien.

The Court of Appeal allowed the appeal, setting aside the order for costs made against the claimant by the primary judge. The court reasoned that the undertaking provided by the new solicitor was sufficient to satisfy the requirements for securing the former solicitor's costs. Consequently, the former solicitor was not entitled to retain possession of the client's papers. The court ordered that the first opponent pay the claimant's costs of the appeal and the costs below, with a certificate available under the Suitors' Fund Act 1951 if otherwise qualified.

Orders

Orders of the court

(1) Grant leave to appeal, on condition that the claimant file the Notice of Appeal within 14 days of these orders.; (2) Appeal allowed. (3) Set aside the order for costs made against the claimant by his Honour Judge O'Connor on 6 August 2004. (4) First opponent to pay the claimant's costs of the appeal and the costs below but to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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