JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHIN -v- HALL [2009] WASCA 216
CORAM: McLURE P
OWEN JA
BUSS JA
HEARD: 12 AUGUST 2009
DELIVERED : 9 DECEMBER 2009
FILE NO/S: CACV 107 of 2008
BETWEEN: NI KOK (NICHOLAS) CHIN
Appellant
AND
AUDREY FRANCIS HALL as Executrix of the Estate of KENNETH DUNCAN HALL
First RespondentSPUNTER PTY LTD
Second RespondentTHE REGISTRAR OF TITLES
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255
File No :CIV 1775 of 2008
Catchwords:
Legal practitioners - Rights and privileges - Statutory charge for legal costs incurred in proceedings resulting in recovery or preservation of property - Whether property 'recovered or preserved' - Turns on its own facts
Legislation:
Legal Practice Act 2003 (WA), s 244
Result:
Appeal dismissed
Application to adduce further evidence dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Mr A M Prime
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Appellant: In person
First Respondent : McCallum Donovan Sweeney
Second Respondent : No appearance
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Australian Electrical Electronics Foundry & Engineering Union Western Australia Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81
Foxon v Gascoigne (1874) LR 9 Ch App 654
Franich v Swannell (1993) 10 WAR 459
Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15
Greer v Young (1883) LR 24 Ch D 545
Law v Hall [2008] WASCA 257 (S)
Michell Sillar McPhee (A Firm) v First Industries Corporation [2006] WASCA 24; (2006) 32 WAR 1
Spunter Pty Ltd v Hall [2006] WASC 6
Spunter Pty Ltd v Hall [No 2] [2007] WASC 239
McLURE P: I agree with Owen JA. However, I wish to reserve my position on the question whether, even if the caveat was not in fact extended, the properties were relevantly recovered or preserved by the proceedings in which the appellant acted for the purposes of the Legal Practice Act 2003 (WA), s 244(1).
OWEN JA:
Introduction
This is an appeal against a decision of a master granting the first respondent, Audrey Hall, summary judgment for the removal of a caveat lodged by the appellant, Chin. The appellant's caveat was lodged over two properties in order to protect a statutory charge which he said arose under the Legal Practice Act 2003 (WA) by virtue of legal work…
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- AGLC
- Chin v Hall [2009] WASCA 216
- Case
- [2009] WASCA 216
- Decision Date
CaseChat Overview and Summary
The legal issues in the case centred on the meaning of the words'recovery' and 'preservation' of property in the context of the statutory charge. The court had to determine whether the client's right to ownership of the property must be established or vindicated through the solicitor's efforts for a charge to arise in favour of the solicitor. The court also had to decide whether the statutory charge extended to the whole of the recovered or preserved property or was limited to the client's interest in that property.
The court considered the principles established in Michell Sillar McPhee (A Firm) v First Industries Corporation, which held that a statutory charge arises in favour of a solicitor when, through his efforts, the property is recovered or preserved. The court noted that the statutory charge is not confined to the interests of the solicitor's client in the property but extends to the whole of the property recovered or preserved. The court also noted that for a charge to arise, there must be a causal connection between the recovery or preservation of the property and the work performed by the solicitor.
The court found that the master had erred in fact in finding that Chin had done nothing to preserve the properties in question. The court found that Chin had acted diligently in protecting Hall's interests and that a statutory charge should arise in his favour. The court ordered that Chin was entitled to a statutory charge over the properties in question and that Hall must pay the costs of the proceedings.
Orders
Orders of the court
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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
The law relating to statutory charges under s 73 of the Legal Practitioners Act 1893 was discussed in some detail in Michell Sillar McPhee (A Firm) v First Industries Corporation [2006] WASCA 24; (2006) 32 WAR 1. The principles espoused in that case are also applicable to s 244 of the Legal Practice Act. In Michell Sillar McPhee the court found that a statutory charge arises in favour of a solicitor over a client's property when, through his efforts, the property is recovered or preserved. The charge arises by virtue of the legislation rather than by declaration of the court. Significantly, the statutory charge is not confined to the interests of the solicitor's client in the property but extends to the whole of the property recovered or preserved. In explaining this point, Steytler P (at [14]) cited Greer v Young (1883) LR 24 Ch D 545 in which Bowen LJ said of a similar provision (at 556):It authorizes a charge not on the mere interest of the plaintiff but on all property recovered in the action whatever, for the plaintiff only, or for him in connection with others. It appears clear to me that it is a salvage section. The solicitor is treated as a salvor who has recovered or preserved something in a time of danger by his work and labour. Into whatever hands it may fall it is charged with the salvage.The rationale for this rule is that a party should not be entitled to the fruits of the cause without first paying the solicitor by whose efforts the fruits were obtained. The court in Michell Sillar McPhee also commented on the requirements that must be satisfied before a charge arises. There must be a causal connection between the recovery or preservation of the property and the work performed by the solicitor: [20]. The question of what is meant by the words 'recovery' or 'preservation' of the property was addressed by Steytler P. According to his Honour (at [19]), the best explanation was provided by Sir George Jessel MR in Foxon v Gascoigne (1874) LR 9 Ch App 654 at 657 (footnote 1), who said:[I]t means that where the Plaintiff claims property, and establishes a right to the ownership of the property in some shape or other, there the property has been recovered; that where a defendant's right to the ownership of property is disputed, and that right has been vindicated by the proceedings, there the property has been preserved … recovery and preservation are correlative terms, … they both relate to the ownership of the property. It is clear, therefore, that for a charge to arise in favour of a solicitor in respect of certain property the client's right to ownership of that property must either be established or vindicated through the efforts of the solicitor. If that occurs, the solicitor's statutory charge will be over the whole of the recovered or preserved property and will not be limited to the client's interest in that property. Chin alleges in the first ground that the master erred in fact in finding that he had done nothing to preserve the properties the subject of Audrey Hall's mortgage.