FAMILY COURT OF AUSTRALIA
| EDWARDS & PETERS AND ANOR | [2014] FamCAFC 51 |
| FAMILY LAW – APPEAL – LEGAL PRACTITIONERS – SOLICITOR’S POSSESSORY OR RETAINING LIEN - Where the appellant solicitor appealed the Federal Magistrate’s refusal to make a declaration that a retaining lien claimed by the solicitor in respect of funds held by the solicitor in trust for a husband was unaffected by orders for property settlement made in proceedings between the husband and his former wife – Where section 258(1) (a) of the Legal Profession Act 2007 (Qld) permits a solicitor to exercise a general retaining lien – Where the Federal Magistrate was not informed of the lien or of the liability in respect of which the lien was claimed either prior to the trial when the Federal Magistrate issued an injunction restraining the husband from dealing with the trust funds or during the course of the trial – Where the Full Court did not accept the submission by the appellant solicitor that the solicitor had no notice of the likely effect of the orders for property settlement on the husband’s capacity to pay his legal fees – Where the Full Court concluded that the lien if it existed had been impliedly waived – Appeal dismissed. FAMILY LAW – APPEAL - COSTS – Where the appellant solicitor was ordered to pay respondent wife’s costs. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
Chorn and Hopkins (2004) FLC 93-204
Ex parte Patience; Makinson v The Minister (1940) 40 SR NSW 96
Farnell and Farnell (1996) FLC 92-681
Hodges Hall and Jovanovic and Markov (1995) FLC 92-611
Magnamain Investments Pty Ltd v Baker Johnson (a firm) and Jezer Construction Group Pty Ltd [2008] QSC 245
Official Trustee in Bankruptcy v Mateo (2003) FLC 93-128
Phillipa Davies and Associates v Primrose Couper Cronin Rudkin [1997] 2 Qd R 266
Twigg v Keady (1996) FLC 92-712
Worrell v Power (1993) 46 FCR 214
| APPELLANT: | Mr Edwards as trustee for the X unit trust trading as X Firm |
| 1ST RESPONDENT: | Mrs Peters |
| 2ND RESPONDENT: | Mr Peters |
| FILE NUMBER: | BRC | 503 | of | 2009 |
| FIRST APPEAL NUMBER: | NA | 22 | of | 2012 |
| SECOND APPEAL NUMBER: | NA | 23 | of | 2012 |
| DATE DELIVERED:: | 27 March 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Strickland and Kent JJ |
| HEARING DATE: | 1 May 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 March 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 167 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hackett |
| SOLICITOR FOR THE APPELLANT: | X Firm |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Cooper |
| SOLICITOR FOR THE 1ST RESPONDENT: | Cooper Family Law |
| COUNSEL FOR THE 2ND RESPONDENT: | In person |
Orders
The appeals (NA 22 of 2012 and NA 23 of 2012) be dismissed.
The appellant pay the first respondent’s costs of and incidental to the appeals with such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this…
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- Edwards and Peters & Anor [2014] FamCAFC 51
- Case
- [2014] FamCAFC 51
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CaseChat Overview and Summary
The legal issues before the court were whether the solicitor's retaining lien was valid and enforceable, and whether the Federal Magistrate's orders for property settlement had the effect of extinguishing or diminishing the lien. The Full Court examined the solicitor's failure to inform the Federal Magistrate of the lien and the circumstances under which it was claimed. The court also considered whether the solicitor had notice of the potential impact of the property settlement orders on the husband’s ability to pay his legal fees, and whether this constituted a waiver of the lien. The Full Court held that the solicitor's lien, if it existed, was impliedly waived by not asserting it at the relevant time.
The Full Court's reasoning was that the solicitor did not draw the Federal Magistrate's attention to the retaining lien either before or during the trial, which was a critical omission given the subsequent orders for property settlement. The court found that the solicitor's failure to assert the lien when the orders were made implied a waiver of the lien. Consequently, the court dismissed the appeal and ordered the appellant to pay the first respondent's costs of and incidental to the appeals. This decision underscores the importance of timely assertion of legal rights and the potential consequences of their non-assertion in the context of family law and property settlement orders.
Orders
Orders of the court
1. The appeals (NA 22 of 2012 and NA 23 of 2012) be dismissed.
2. The appellant pay the first respondent’s costs of and incidental to the appeals with such costs to be assessed in default of agreement.
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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