Chtibi & Chtibi
[2021] FamCA 176
•8 April 2021
FAMILY COURT OF AUSTRALIA
Chtibi & Chtibi [2021] FamCA 176
File number(s): PAC 3587 of 2015 Judgment of: FOSTER J Date of judgment: 8 April 2021 Catchwords: FAMILY LAW – LEGAL PRACTITIONERS – SOLICITOR’S LIEN – where issue of outstanding costs as between the wife and her former legal representative – where wife’s former solicitor attended a two day hearing when matter was adjourned part-heard – where legal representative seeks to recover his costs – where wife has made professional conduct complaint as to the legal representative – where it is appropriate that an order be made for a lien over certain funds that may be due and payable to the wife under property orders until question of her costs liability resolved. Legislation: Family Law Act 1975 (Cth) Cases cited: Firth v Centrelink & Anor [2002] NSWSC 564
Marsh & Marsh [2014] FamCA 361
Number of paragraphs: 15 Date of hearing: 16 March 2021 Place: Parramatta Applicant – self-represented litigant: Ms A Chtibi Solicitor for the Respondent: The Respondent or his solicitor did not attend Solicitor for the Intervener: F Lawyers ORDERS
PAC 3587 of 2015 BETWEEN: MS A CHTIBI
Applicant
AND: MR B CHTIBI
Respondent
Mr G
Intervener
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
6 APRIL 2021
THE COURT ORDERS THAT:
1.That the wife be restrained from receiving any payment of money or transfer of property pursuant to any partial or final orders proposed under section 79 of the Family Law Act 1975 (Cth) except as these orders may otherwise provide.
2.That in the event of consent orders being sought by the parties, that the intervener be heard prior to the Court’s determination of any application for consent orders.
3.That if the wife’s application for property is determined on the basis that it includes an order that the husband pay to the wife a sum of money or a sum as to costs the wife shall do all things necessary to deposit such sum or sums up to a total of $25,778.50 to the trust account or such other controlled money account nominated by the intervener prior to any further or other payment being received by her.
4.That pending the determination of the costs dispute as between the wife and the intervener, the intervener shall hold those monies in trust on account for the wife.
5.That in the event that the husband or the wife or both of them file and serve a notice of discontinuance in relation to his, her or their applications before the Court, the intervener have liberty to request that the proceedings be relisted before the Court on short notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chtibi & Chtibi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The current application for determination is a discrete application made in the context of ongoing property proceedings as between the applicant wife and respondent husband.
Proceedings were commenced by the applicant wife in this Court in July 2015.
The present application arises by reason of an Application in a Case filed by the intervener solicitor, Mr G, on 2 December 2020.
The intervener’s firm, F Lawyers, previously acted for the applicant wife from June 2017 until July 2019.
In an Amended Application in a Case filed on 4 March 2021 the intervener seeks, in summary:
(a)That a charge in the sum of $25,778.50 in favour of the intervener be secured and made payable from the funds to be paid by the husband to the wife for legal work undertaken on behalf of the wife.
(b)That should the wife receive by way of property settlement an amount in excess of the sum of $25,778.50 pursuant to the charge ordered by the Court the wife becomes liable to pay the said amount to the intervener.
The application by the intervener is supported by two affidavits filed on 2 December 2020 and 4 March 2021.
The wife provided instructions to the intervener solicitor as and from 23 June 2017 at which time a costs agreement was signed by the wife. Subsequently, significant work was undertaken by the intervener and an invoice was forwarded to the wife on 24 September 2019 for the sum of $25,778.50.
On 23 July 2019 a Notice of Ceasing to Act was filed by the intervener.
The wife deposes that she has filed a complaint against the intervener to the Office of the Legal Services Commissioner and this complaint has not yet been resolved.
The solicitor asserts an equitable lien in relation to the fruits of litigation that may arise to the wife in the context of the present property proceedings.
The nature of a solicitor's lien for costs, whether taxed or untaxed or quantified or unquantified, has been the subject of well-settled principles of law. The basic principles that are applicable to the current matter are that:
(a)Firstly, the solicitor's right exists over money recovered through obtaining judgment in litigation and also over money recovered through the settlement of litigation.
(b)Secondly, the solicitor's right exists over both the amount of a judgment in favour of the client and the amount of an order for costs in favour of the client.
(c)Thirdly, the solicitor's right exists over money which is in the possession of the solicitor or also over money which is in Court and money which is owed to the client but not paid into Court.
(d)Fourthly, the solicitor need not still be acting for the client at the time the money was recovered.
(e)Fifthly, it must be shown that there is a sufficient causal link between the solicitor's exertions and the recovery of the fund of money, and, as has been stated above, there is a direct causal link between the actions of the solicitor applicant in this application and the recovery of the settlement evidenced by consent orders by the wife.
(f)Sixthly, in relation to those situations where it is necessary to ascertain the quantum owing to the solicitor, the solicitor's right exists in the fund prior to the occurrence of the taxation.
These well-settled principles have been the subject of oft-quoted decisions, particularly Firth v Centrelink & Anor [2002] NSWSC 564, where Campbell J overviewed the development of the principles applicable to the present application. That decision has been directly applied in this Court in Marsh & Marsh [2014] FamCA 361 by Aldridge J.
Clearly, in the present case, the applicant's solicitor is entitled to a lien, and in that regard, it is appropriate to make orders that give effect to the application by the solicitor.
The solicitor’s ultimate claim for costs in terms of quantum will need to be the subject of agreement as between solicitor and client or in default of agreement taxation.
Orders will be made accordingly.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 8 April 2021
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