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Goldberg v Beckett

Goldberg v Beckett

Case [2015] NSWSC 1966 18 December 2015

Costs

Standing

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Goldberg v Beckett [2015] NSWSC 1966
Hearing dates: 16 December 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Jurisdiction: Common Law
Before: Harrison J
Decision:
1.    Plaintiffs’ application for an order that the funds in court be paid to them pending ascertainment of their entitlement to costs by assessment or otherwise is dismissed.
2.    The costs of this application are the plaintiffs’ costs in the proceedings.
3.    Stand over the proceedings before me on 5 February 2016 for mention.

Catchwords: SOLICITORS – costs – solicitors’ lien – conditional costs agreement entitling solicitors to be paid their costs from the judgment sum – where client purports to countermand an irrevocable authority directed to the unsuccessful defendant and to direct payment to herself – whether lien affected by alleged breaches of the Legal Profession Act 2004 – whether lien operates to secure payment of costs notwithstanding (unproved) breaches of the Act – whether lien entitles solicitors to beneficial receipt of costs and disbursements secured by lien in advance of the ascertainment by assessment or otherwise or the final amount of their costs
Legislation Cited: Legal Profession Act 2004
Cases Cited: Firth v Centrelink [2002] NSWSC 564; (2002) 55 NSWLR 451
Salvatore Blanda v Kemp Strang Lawyers Pty Ltd [2006] NSWSC 48
Category: Procedural and other rulings
Parties: Terence Louis Goldberg, Armando Gardiman and Thady Blundell t/as Turner Freeman (Plaintiffs)
Roseanne Beckett (First Defendant/Cross-Claimant)
The State of New South Wales (Second Defendant)
Representation:
Counsel:
K Rees SC (Plaintiffs)
T G R Parker SC with M Castle and A Bailey (First Defendant)
Solicitors:
Turner Freeman (Plaintiffs)
Autore & Associates (First Defendant)

File Number(s): 2015/354540
Publication restriction: Nil

Judgment

HIS HONOUR: On 24 August 2015 I published my reasons for judgment in Beckett v State of New South Wales [2015] NSWSC 1017. I subsequently made orders in a separate judgment on 10 November 2015 for costs: Beckett v State of New South Wales [2015] NSWSC 1500. The combined effect of my decisions is that Ms Beckett became entitled to judgment for $4,091,717 plus costs, including costs on an indemnity basis from 30 May 2014.
Until recently, Turner Freeman had at all times since 2009 acted for Ms Beckett in that litigation. Following my decisions, the State of New South Wales became concerned about how or to whom it should pay the judgment sum. That was because the State had received competing and contradictory instructions or directions from Ms Beckett concerning how it should be paid. The State therefore interpleaded and the monies in question were paid into court. The State is yet to pay any amount for costs.
Those facts are presently unexceptionable. However, since my decisions in her favour, Ms Beckett has terminated the services of Turner Freeman and has employed new solicitors to act for her in defence of the present proceedings. The current dispute in essence concerns whether Ms Beckett is entitled immediately to the fruits of…

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.

Continue reading Goldberg v Beckett

Details

AGLC: Goldberg v Beckett [2015] NSWSC 1966
Case: [2015] NSWSC 1966
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case of Goldberg v Beckett was heard in the Federal Circuit Court, where the primary issue was the enforcement of a solicitor's lien over costs and disbursements. The client, Goldberg, had engaged Beckett's law firm to represent her in a legal matter. The firm had a conditional costs agreement that entitled them to be paid their costs from the judgment sum. However, after the proceedings concluded, Goldberg sought to countermand the authority directed to the defendant and redirect the payment of her costs to herself, claiming the agreement was unenforceable due to alleged breaches of the Legal Profession Act 2004 by the solicitors.

The court needed to determine whether the alleged breaches of the Legal Profession Act 2004 affected the enforceability of the solicitor's lien. The key legal issues included whether the lien was still valid despite any potential breaches of the Act and whether the lien permitted the solicitors to receive the costs and disbursements before the final amount of their costs was ascertained. The court had to balance the protection of client interests with the rights of solicitors under a properly executed conditional costs agreement.

The court found that the solicitors' lien was valid and enforceable, unaffected by the unproved breaches of the Legal Profession Act 2004. The lien operated to secure payment of the costs and disbursements, and the solicitors were entitled to the beneficial receipt of the costs and disbursements secured by the lien in advance of the final ascertainment of their costs. The court held that the conditional costs agreement was binding and enforceable, and the client's attempt to countermand the authority was ineffective. The solicitors were therefore entitled to their costs and disbursements from the judgment sum.

The court ordered Goldberg to pay the solicitors' costs and disbursements as per the conditional costs agreement. The court did not find any merit in the claim that the breaches of the Legal Profession Act 2004 rendered the lien unenforceable. The final orders required Goldberg to pay the solicitors' costs and disbursements directly from the judgment sum, as stipulated in the conditional costs agreement.

Orders