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

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.

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.

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.

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.

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.

In Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100,…

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 Helm v Helm

Details

AGLC: Helm v Helm [2011] NSWSC 1595
Case: [2011] NSWSC 1595
Decision Date: 29 November 2011

CaseChat Overview and Summary

The matter before the court involved a dispute between Helm and Helm, where the plaintiff sought to establish a particular lien over a legacy intended for the defendant. The defendant claimed that the legacy should be exempt from this lien. The case was heard in the Supreme Court of Queensland. The central legal issue was whether the solicitor had the right to claim a particular lien over the fruits of the action, specifically the legacy, and whether this lien could be protected. Additionally, the court had to determine whether the amount claimed for legal costs should be paid into court and if any payment out of this amount could be made subject to an application for assessment within a reasonable time.

The court examined the nature of the particular lien, which is a right that allows a solicitor to retain possession of a client's property until a debt, in this case, the legal costs, is paid. The court found that the solicitor was entitled to this lien over the legacy as it was the fruits of the action. The court further determined that the lien could be protected, meaning that the legacy could not be transferred or disposed of without satisfying the solicitor's claim for costs. Regarding the payment of the legal costs, the court ordered that the amount claimed be paid into court. Any payment out of this amount was to be subject to an application for assessment within a reasonable time, ensuring that the defendant's rights were protected while also allowing for the solicitor's claim to be addressed.

The court's decision was that the solicitor was entitled to the particular lien over the legacy, and this lien could be protected. The court also ordered that the amount claimed for legal costs be paid into court, with any subsequent payments subject to a timely application for assessment. This ruling ensured that the solicitor's right to recover costs was upheld, while also safeguarding the defendant's interests in the legacy.

Orders