Helm v Helm

[2011] NSWSC 1595

Supreme Court

New South Wales

Medium Neutral Citation:	Helm v Helm & Anor; Application of Conti [2011] NSWSC 1595
Hearing dates:	Tuesday, 29 November 2011
Decision date:	29 November 2011
Jurisdiction:	Equity Division - Duty List
Before:	White J
Decision:	Refer to paras [14] and [15] of judgment.
Catchwords:	LEGAL PRACTITIONERS - particular lien - claim by solicitor over legacy to be paid to plaintiff - solicitor entitled to lien over fruits of action and to have lien protected - order that amount claimed for legal costs be paid into court - payment out of amount claimed for legal costs subject to application for assessment within reasonable time
Legislation Cited:	Legal Profession Act 2004
Cases Cited:	Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 Jackson v Richards [2005] NSWSC 630
Category:	Interlocutory applications
Parties:	John Conti (Applicant) Peter John Helm (Plaintiff/Respondent) James Francis Helm (1st Defendant) Patricia Gail Pringle (2nd Defendant
Representation:	Applicant in person Respondent in person
File Number(s):	2009/291785

Judgment

1. HIS HONOUR: On 4 May 2011 Macready AsJ ordered that the plaintiff receive a legacy of $75,000 out of the estate of the deceased and that his costs on the ordinary basis be paid out of the estate of the deceased. The plaintiff had been represented in the proceedings by a firm of solicitors and counsel.

1. By notice of motion filed on 25 October 2011, Mr John Philip Conti, who acted as solicitor for the plaintiff, seeks an order that the defendants' solicitor, Mr David Jackson, pay the amount of $75,790.58 that he holds on trust, and that represents the legacy awarded to the plaintiff, plus interest, into court.

1. Mr Conti also seeks an order that of the sum paid into court an amount of $26,669.35 be paid to the plaintiff and the balance of $49,121.63 be paid out to him on account of the costs payable to him, to counsel, to a firm for which he formerly worked in doing work for the plaintiff, and to a firm of solicitors originally retained by the plaintiff and for whom Mr Conti originally acted as agent.

1. There was an issue in this application as to whether the order for payment of the legacy and interest into court could be supported by an authority that the plaintiff signed on 29 June 2011 authorising payment of the amount of the legacy to Mr Conti. The plaintiff says that at the time he gave that authority he was unaware that it was proposed that legal costs be paid out of the moneys to be paid to his lawyer.

1. There was a dispute of fact about that. It is unnecessary to resolve the dispute. The plaintiff in any event has since retracted that authority. It is not on the basis of that authority that the applicant, Mr Conti, is entitled to an order for payment of the legacy into court in the first instance.

1. In Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100, Jordan CJ authoritatively stated the basis upon which at common law a solicitor is entitled to his costs and disbursements from money recovered from a client. Jordan CJ said:

" A solicitor has no lien for his costs over any property which has not come into his possession. If, however, as the result of legal proceedings in which the solicitor has acted for the client, the client obtains a judgment or award or compromise for the payment of money, although the solicitor acquires no common law title to his client's right to receive the money or to any part of that right, he acquires a right to have his costs paid out of the money, which is analogous to the right which would be created by an equitable assignment of a corresponding part of the money by the client to the solicitor. That is to say, the solicitor has an equitable right to be paid his costs out of the money; and if he gives notice of his right to the person who is liable to pay it, only the solicitor and not the client can give a good discharge to that person for an amount of the money equivalent to the solicitor's costs ."

1. It is clear on the evidence that the plaintiffs' solicitors do have what has been called a " fruits of the action " lien. For such a lien to exist the " fruits of the action " must be produced by the industry of the solicitor. As I observed in Jackson v Richards [2005] NSWSC 630, that is not an exacting standard. It is not necessary to demonstrate that a judgment came about as a result of specific efforts by the solicitor. But there must be some causal link between the solicitor having acted for the client in the proceedings and the resulting payment. That is demonstrated in this case.

1. Mr Conti is entitled to have his lien over the fruits of the litigation protected. The solicitor for the executor will deal with the legacy and interest payable to the plaintiff as directed by the Court. To protect that lien there should be an order that the amount for which the lien is claimed should be paid into court. I see no reason for the whole of the $75,000 to be paid into court and part of it paid out of court to the plaintiff. That would only increase costs and delay. I will order Mr Jackson to pay the amount claimed on account of legal costs, namely $49,121.63, into court and direct that he would be justified paying the balance to the plaintiff.

1. Mr Conti is not presently entitled to have the amount claimed for legal costs paid out.

1. The plaintiff has been provided with itemized bills. He is entitled to apply to the Manager, Costs Assessment for an assessment of the costs pursuant to s 350 of the Legal Profession Act 2004.

1. The plaintiff accepts that if he is to challenge the quantum of the costs claimed as he does, that he should apply for such an assessment within a reasonable period. In any event, whether he accepted it or not, I think that there should be such a stipulation, and if no such application is made there will be liberty to apply to Mr Conti for an order that the money that is to be paid into court be paid out to him.

1. Upon the costs as between solicitor and client being assessed, the amount found to be payable should be paid out to Mr Conti to be disbursed to the lawyers entitled. Any difference between the sum to be paid into court and the amount assessed, is to be paid to the plaintiff.

1. It would be prudent, one would think, for the plaintiff at the same time to seek to have the costs assessed, not only between solicitor and client, but on the ordinary basis, so that that amount of costs can be recovered from the estate.

1. For these reasons I propose to make the following orders, subject to anything the parties may have to say about the form of the order:

1.   Order that the second respondent to the notice of motion filed 5 October 2011 pay into the Supreme Court of New South Wales the amount of $49,121.63 to be applied in accordance with the following orders, or as the Court might otherwise direct.

2.   Order that the second respondent would be justified in paying the balance of the legacy plus interest payable pursuant to the orders of Macready AsJ of 4 May 2011 to the plaintiff.

3.   Order that if by 20 December 2011 the plaintiff has applied to the Manager, Costs Assessment for the assessment of the costs claimed to be payable to Nicholas Bilinsky of counsel, Affinity Lawyers, Boyd House Partners Solicitors, or Mr John Conti, lawyer, that the sum paid into court be held pending that assessment.

4.   Upon the assessment of such costs as between solicitor and client there is to be paid out to Mr Conti such sum as might be determined by the costs assessment, and the balance, if any, is to be paid to the plaintiff.

5.   If no application has been made by 20 December 2011 by the plaintiff for an assessment of such costs, the sum of $49,121.63 is to be paid out to Mr Conti on account of costs claimed to be payable to him, Nicholas Bilinsky of counsel, Affinity Lawyers, and Boyd House Partners Solicitors.

6.   The parties have liberty to apply on reasonable notice.

7.   Direct that the plaintiff promptly serve on Mr Conti a copy of any certificate of determination of costs consequent upon any application for an assessment of costs.

[Parties addressed.]

1. I make those orders.

1. I also note that nothing in these orders is to affect the right of any party in relation to the amount that might be found payable on costs assessment, including any order that might be made for costs in relation to the costs assessment.

Decision last updated: 20 December 2011