Hunt Leather Pty Ltd v Transport for NSW (No 2)

[2023] NSWSC 1243

Supreme Court

New South Wales

Medium Neutral Citation:

Hunt Leather Pty Ltd v Transport for NSW (No 2) [2023] NSWSC 1243

Hearing dates:

19 October 2023

Date of orders:

19 October 2023

Decision date:

19 October 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The stay on paragraph 4 of the orders made on 3 August 2023 be lifted to allow for the funds paid into Court on account of security for costs in the proceedings, plus any interest that has accrued on that amount to be released to the plaintiffs’ solicitors.

Catchwords:

CIVIL PROCEDURE — Representative proceedings – equitable liens – where plaintiffs seek stay of prior orders to allow for funds paid into Court on account of security for costs to be released to the plaintiffs’ solicitors – where plaintiffs’ previous solicitors maintain that they hold a lien over documents and moneys

Cases Cited:

Banner and Cody (No 2) [2023] FedCFamC1F 345

Carew Counsel Pty Ltd v French (2002) 4 VR 172; [2002] VSCA 1

Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564

Category:

Procedural rulings

Parties:

Hunt Leather Pty Ltd (First Plaintiff)
Sophie Hunt (Second Plaintiff)
Ancio Investments Pty Ltd (Third Plaintiff)
Nicholas Zisti (Fourth Plaintiff)

Transport for NSW (Defendant)

Representation:

Counsel:
A Hochroth (Plaintiffs)
N Simpson with L Moretti (Defendant)

Solicitors:
Banton Group (Plaintiffs)
Lander & Rogers (Defendant)

File Number(s):

2018/263841

Publication restriction:

None

REVISED EX TEMPORE JUDGMENT

1. When this matter came before me this morning, I made a number of orders by consent relating to the future management of the matter.

2. The plaintiffs also sought an order that the stay of orders made on 3 August 2023 be lifted to allow the funds paid into Court on account of security for costs in the proceedings, plus any interest that has accrued on that amount, be released to the plaintiffs' solicitors.

3. The plaintiffs seek this order because that amount was paid into Court on account of security for the defendant’s costs.

4. There has been a change in the solicitors on the record between the time of my judgment and today. Those issues were previously ventilated before Garling J. The former solicitors for the plaintiffs, Mitry Lawyers, have ceased to act and the Banton Group now acts for all plaintiffs, including the lead plaintiffs. Mitry Lawyers maintain that they hold a lien over certain documents and that any amount recovered by the plaintiffs should be subject to that lien. They have said so in earlier correspondence with the current solicitors for the plaintiffs.

5. In accordance with my orders, the current solicitors for the plaintiffs informed Mitry Lawyers that I would be deciding on the plaintiffs’ proposed Order 3 today, and that I would be back in Court at 2.30 pm if they wished to appear, although they were not compelled to do so.

6. They are not here, but they sent an e-mail to my Chambers copying in the other parties at 12.05 pm today submitting that, notwithstanding the characterisation of the moneys held in Court, the lien would extend to those moneys because, if not for the judgment, the plaintiffs would have no basis for obtaining return of the amount lodged as security.

7. In earlier correspondence dated 18 October 2023, Mitry Lawyers referred to a number of cases, including Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564 (“Firth”) and Banner and Cody (No 2) [2023] FedCFamC1F 345 as supporting the proposition they advance.

8. A solicitor's lien exists over the money recovered through obtaining judgment in litigation and also money recovered through the settlement of litigation: Carew Counsel Pty Ltd v French (2002) 4 VR 172; [2002] VSCA 1 at [33].

9. In Firth, the Court (per Campbell J) held at [35] that the lien also existed over the money which is in the possession of the solicitor and other money which is in Court. Presumably, the former solicitors rely on that latter proposition. Further, the solicitor need not be still acting for the client at the time the money was recovered.

10. In my view, the money which the plaintiffs seek to have returned is not covered by the purported lien. While it is money which has been paid into Court, it is not money recovered through obtaining a judgment or settlement of the proceedings. It was money which was paid into Court by the plaintiffs themselves, not the defendant. The plaintiffs have not recovered this money from the defendant pursuant to any judgment or settlement. The plaintiffs are merely seeking, without objection from the defendant, return of the money that they paid into Court as security for the defendant's costs.

11. In my view, the expression referred to in the cases to which I have referred – that is, the lien extends to money paid into Court – does not include money paid into Court by way of security for costs.

12. In the circumstances, and as Mitry Lawyers have been given ample opportunity to be heard, I am satisfied that Order 3 should be made. I make an order in accordance with Order 3 in the plaintiffs' Short Minutes of Order.

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Decision last updated: 23 October 2023