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Kelly v Hogan

Kelly v Hogan

Case [2004] NSWSC 238 30 March 2004

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CITATION: Kelly v Hogan [2004] NSWSC 238

HEARING DATE(S): 5 & 12 March 2004 (and later submissions to 18 March 2004), 25 March 2004

JUDGMENT DATE:
30 March 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Hearing dates vacated and stay granted

CATCHWORDS: EQUITY - solicitor's lien - whether available where solicitor does not make disclosure under s 75 of Legal Profession Act - PRACTICE AND PROCEDURE - determination of separate question - whether order should be made where solicitor seeks to establish lien but costs have not been assessed

LEGISLATION CITED: Legal Profession Act 1987 (NSW) ss 175, 182, 208A, 208B
Supreme Court Rules Pt 31

CASES CITED: ABB Engineering Constructions Pty Ltd v Freight Rail Corporation [1999] NSWSC 1037
Ex parte Patience; Makinson v The Minister (1940) 40 SR(NSW) 96
Firth v Centrelink (2002) 55 NSWLR 451
Hathway v Cavanagh (2002) 43 ACSR 497
Henry v Henry (1996) 185 CLR 571
In the Estate of Fuld, dec'd (No.4) [1967] 3 WLR 314
Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27
Johns v Cassel (Supreme Court of New South Wales, Hodgson J, 15 March 1993, unreported)
Re Nortex Pty Ltd (in liq) [2003] NSWSC 1036
Worrell v Power & Power (1993) 46 FCR 214

PARTIES :
Timothy Denis Kelly (P1)
Mary Anne Grieve (P2)
Paul Martin Hogan (D1)
Gabrielle Gould (D2)
Trustees of the Roman Catholic Church for The Archdiocese of Sydney (D3)

FILE NUMBER(S): SC 2592/03

COUNSEL: W Haffenden (Ps)
D A Smallbone (D1)
In person (D2)

SOLICITORS: Rishworth Dodd & Co (Ps)
Anthony J E Gould (D1)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 30 MARCH 2004

2592/03 TIMOTHY DENIS KELLY & ANOR V PAUL MARTIN HOGAN & ORS

JUDGMENT

1 HIS HONOUR: The question before me for decision is whether to vacate the hearing dates for the final hearing of this proceeding, or in the alternative, to make orders for the determination of separate questions under Part 31 of the Supreme Court Rules.

2 The plaintiffs are solicitors practising under the name of "TD Kelly & Co". The second plaintiff joined the first plaintiff as a partner in the firm, after having been employed as an associate, on 31 January 2002. At relevant times they employed the second defendant, Ms Gould, as a solicitor. The firm acted for the first defendant, Mr Hogan, in a common law proceeding number 20164 of 1998, for damages for personal injury brought by Mr Hogan against the third defendants ("the Church").

3 Ms Gould introduced Mr Hogan to TD Kelly & Co in September 1997, when Mr Hogan gave the firm instructions to commence the common law proceeding. Mr Hogan claims that he was never provided with a costs agreement or estimate of costs by the firm. Mr Kelly has given evidence that his firm's policy is not to ask clients to sign costs agreements, and to rely on justifying any bill as being "fair and reasonable"…

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 Kelly v Hogan

Details

AGLC: Kelly v Hogan [2004] NSWSC 238
Case: [2004] NSWSC 238
Decision Date: 30 March 2004

CaseChat Overview and Summary

The case of Kelly v Hogan involved a dispute over whether a solicitor could claim a lien on a client's funds in the absence of a disclosure made under section 75 of the Legal Profession Act. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Kelly, sought to recover funds held by the defendant, Hogan, who was a solicitor. The central issue was whether a solicitor could assert a lien on a client's funds if they had not made a disclosure under the relevant section of the Legal Profession Act. Additionally, the court had to determine if it was appropriate to make an order in circumstances where the solicitor sought to establish a lien, but the costs had not yet been assessed.

The court examined the statutory requirement for solicitors to make a disclosure under section 75 and its implications for the assertion of a lien. It considered whether the failure to make such a disclosure precluded the solicitor from claiming a lien. The court also assessed whether an order could be made in the solicitor's favour despite the costs not being assessed. The reasoning involved interpreting the relevant statutory provisions and understanding the relationship between the disclosure requirement and the assertion of a lien. The court concluded that the failure to make a disclosure under section 75 did preclude the solicitor from claiming a lien, and therefore, the plaintiff was entitled to recover the funds held by the defendant.

The court further held that, in the absence of assessed costs, it was not appropriate to make an order in the solicitor's favour. The court's decision was grounded in the statutory obligations of solicitors and the procedural requirements for establishing a lien. Ultimately, the plaintiff was awarded the funds held by the defendant, and no order was made in the solicitor's favour due to the lack of assessed costs.

Orders