Chin v Hall

Case [2009] WASCA 216


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 Respondent

SPUNTER PTY LTD
Second Respondent

THE 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

Hall v Chin [2008] WASC 255

Hall v Hall [2007] WASC 34

Hall v Hall [2007] WASCA 94

Law v Hall [2005] WADC 75

Law v Hall [2008] WASCA 257

Law v Hall [2008] WASCA 257 (S)

Law v Hall [2009] WASCA 86

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

Wollongong Corporation v Cowan (1955) 93 CLR 435

  1. 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

  1. 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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Chin v Hall [2009] WASCA 216
Case
[2009] WASCA 216
Decision Date

CaseChat Overview and Summary

The case of Chin v Hall involves a dispute between Chin, the solicitor, and Hall, the client, over legal costs incurred by the former in proceedings that resulted in the recovery or preservation of the latter's property. The case was heard in the Supreme Court of Western Australia. Chin claims that he is entitled to a statutory charge under section 244 of the Legal Practice Act for his work in preserving Hall's property. Hall disputes this claim and argues that Chin did not do anything to preserve the properties in question.

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.