Jackson Smith v Richards - [2004] NSWSC 915

CITATION: Jackson Smith v Richards [2004] NSWSC 915

HEARING DATE(S): 10 September 2004

JUDGMENT DATE:
10 September 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Part of proceeds of sale of property ordered to be set aside to answer possible solicitor's claim to charge over it.

CATCHWORDS: LEGAL PRACTITIONERS - costs - question of whether charge over property to secure solicitor's costs was not enforceable if solicitor had failed to make disclosure required by section 175 Legal Profession Act 1987 not convenient to decide on interlocutory application

LEGISLATION CITED: Legal Profession Act 1987
Property (Relationships) Act 1984

CASES CITED: Kelly v Hogan [2004] NSWSC 238

PARTIES :
Peter Alan Jackson and Gregory Hilliard Smith Trading as Jackson Smith Solicitors - Plaintiff
Gary Noel Richards - Defendant

FILE NUMBER(S): SC 4960/04

COUNSEL: S Kaur-Bains - Plaintif
P Cullen - Defendant

SOLICITORS: Jackson Smith - Plaintiff
Unrepresented - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 10 SEPTEMBER 2004

4960/04 PETER ALAN JACKSON AND GREGORY HILLIARD SMITH TRADING AS JACKSON SMITH SOLICITORS v GARY NOEL RICHARDS

JUDGMENT – Ex Tempore (Revised 1 October 2004)

1 HIS HONOUR: This is an application brought by a solicitor against his former client. The solicitor had acted for the client in connection with some proceedings under the Property (Relationships) Act 1984.

2 In this application, the solicitor seeks an interim order whereby the proceeds of sale of a property, which had been the home in which the de facto couple had lived, be partly set aside in a controlled monies account to answer a claim which the solicitor has to have a security interest in those proceeds of sale.

3 The claim for a security interest is put on two separate bases. The first basis is that there was an oral agreement to create a charge over the proceeds of sale, to secure the costs. The second basis is that the solicitor is entitled to a “fruits of the action” lien.

4 There was a period of time in which the solicitor was helping the defendant in connection with the litigation, by providing him with occasional advice, but not being the solicitor on the court record. The time came when the client found it too difficult to continue acting for himself, and asked the solicitor to go on the record. The solicitor gives evidence that the client said to him, at that stage, “You will get paid from my share of the property settlement. I have come to accept that the house may have to be sold to pay my costs.”

5 The solicitor gives evidence that he said, “On the basis that our account will get paid, we will act for you in these proceedings.” The defendant denies that there was such a conversation. There is a file note which the solicitor made, on 16 April 2003, which records the giving to the client an estimate for the costs of the litigation totalling $24,000, and…

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 Jackson Smith v Richards

Details

AGLC: Jackson Smith v Richards [2004] NSWSC 915
Case: [2004] NSWSC 915
Decision Date: 10 September 2004

CaseChat Overview and Summary

Jackson Smith commenced proceedings against Richards, seeking to enforce a charge over Richards' property to secure the costs of Smith's litigation. The matter was before the court to determine whether the charge was enforceable given that Smith had failed to make a disclosure required by section 175 of the Legal Profession Act 1987. The court considered the appropriate procedure for dealing with the matter, given that the issue of the charge's enforceability was intertwined with the issue of costs, which had not yet been finally determined.

The court had to decide whether the charge over Richards' property was enforceable in light of Smith's failure to comply with the disclosure requirement. The court also had to determine whether the matter should be decided at the interlocutory stage or if it was more appropriate to wait until the costs were finally determined. This required the court to consider the potential consequences of enforcing the charge and the implications of not enforcing it, as well as the impact on the final determination of costs.

The court held that the issue of whether the charge was enforceable was inextricably linked to the issue of costs, which had not yet been finally determined. The court noted that it would not be appropriate to make a final determination on the enforceability of the charge at this interlocutory stage. Instead, the court found that it would be more appropriate to wait until the costs were finally determined before deciding the issue of the charge's enforceability. The court emphasised that the issue of costs was a matter of substance, and that it was not convenient to decide the issue of the charge's enforceability without first determining the costs.

The court dismissed the application for an order enforcing the charge. The court ordered that the matter be stayed until the costs were finally determined, at which point the issue of the charge's enforceability could be reconsidered. The court also noted that the parties would be at liberty to make further applications in light of any final determination of costs.

Orders