Doyles Construction Lawyers v D'Jamirze - [2004] NSWSC 507

CITATION: Doyles Construction Lawyers v D'Jamirze & anor [2004] NSWSC 507

HEARING DATE(S): Thursday 3 June 2004

JUDGMENT DATE:
11 June 2004

JURISDICTION:
Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: Orders sought in pars 2 and 7 of summons dismissed. Balance of summons stood over to a date to be fixed.

CATCHWORDS: SOLICITORS - COSTS - RIGHTS IN NATURE OF A LIEN OVER "FRUITS OF ACTION" - DECLARATORY ORDER SOUGHT - NO REASONABLE BASIS FOR DETERMINING APPRECIABLE RISK THAT FORMER CLIENTS WILL DEPRIVE SOLICITOR OF PROPER COSTS - OFFERS TO HOLD OR PAY INTO COURT SUM IN DISPUTE - IN FACT PAID INTO COURT - PROTECTION OF COURT BY DECLARATORY ORDER NOT SHOWN TO BE REQUIRED - BANKRUPTCY OF ONE OF TWO FORMER CLIENTS - NO DEMONSTRATION OF NEED FOR ORDER ARISING OUT OF THAT CIRCUMSTANCE

LEGISLATION CITED: Bankruptcy Act 1966 (Cth)

CASES CITED: Barker v St. Quintin (1844) 12 M & W 441
Ex parte Patience; Makinson v The Minister 1940 40 SR (NSW) 96
Johns v Cassel (1993) FLC 92-364
Mercer v Graves 1872 LR 7 QB 499
Re Allied Glass Manufacturers Ltd (1936) 36 SR (NSW) 425
Twigg v Keady (1996) FLC 92-712

PARTIES :
Doyles Constructions Lawyers v Alick D'Jamirze and Nickolai D'Jamirze t/as Plasterboard Professionals

FILE NUMBER(S): SC 12989/03

COUNSEL: J. Doyle, Solicitor (Plaintiff)
J. Cameron, Solicitor (Defendants)

SOLICITORS: Doyles Construction Lawyers (Plaintiff)
Johninfo Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 11 June 2004

12989/03 - DOYLES CONSTRUCTIONS LAWYERS v ALICK D’JAMIRZE and NICKOLAI D’JAMIRZE t/as PLASTERBOARD PROFESSIONALS
JUDGMENT

1 HIS HONOUR: By summons filed on 11 November 2003 the plaintiff, a firm of solicitors, sued the defendants, former clients, who are tradesmen plasterers. The kernel of the dispute relates to a claim for legal costs, however at the hearing only pars 2 and 7 of the summons were pressed, the other prayers being almost inevitably determinable upon the outcome of outstanding costs assessment proceedings. Relevantly the plaintiff seeks a declaration of entitlement to a lien over certain money which is in fact presently paid into this Court. The pursuit of such an order in that circumstance would seem, at least at first blush, curious and it is necessary to sketch some background preceding the issue of the summons and a subsequent particular discovery concerning one of the defendants.

2 In May 2001 the defendants retained the plaintiff in connection with the recovery of money claimed to be due to them for work done and materials provided in connection with subcontracting work on a building project. The head contractor from whom payment was sought was Grindley Constructions Pty Limited (Grindley). On 23 May 2001 the defendants signed a costs agreement with the plaintiff. I note in passing that the costs and expenses estimate totalled $1,700 for a statute based claim and there was said to be mention of an estimate of $17,000 to $20,000 if litigation was needed to be pursued. At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 507
Decision Date: 11 June 2004

CaseChat Overview and Summary

Doyles Construction Lawyers sought a declaratory order from the court against their former clients, D'Jamirze, seeking a right in nature of a lien over the fruits of the former clients' action. The former clients had entered into a compromise with the solicitor regarding costs, which included a payment to be made into court pending the outcome of the declaratory order proceedings. The court was required to determine whether the solicitor had a reasonable basis for determining an appreciable risk that the former clients would deprive the solicitor of proper costs, and whether a declaratory order was necessary to protect the court.

The court found that the solicitor did not have a reasonable basis for determining an appreciable risk that the former clients would deprive the solicitor of proper costs. The court also found that the offers made by the solicitor to hold or pay into court the sum in dispute were genuine and that the payment had in fact been made into court. The court held that the protection of the court by a declaratory order was not shown to be required. The bankruptcy of one of the former clients did not give rise to a need for the order, as there was no demonstration of a need arising out of that circumstance.

Accordingly, the court dismissed the solicitor's claim for a declaratory order. The former clients were ordered to pay the solicitor's costs of the proceeding on an indemnity basis. The sum paid into court was to be held by the court pending further order.

Orders