Macura v Sarasevic (No 2) - [2019] NSWSC 1621

Supreme Court

New South Wales

Medium Neutral Citation: Macura v Sarasevic (No 2) [2019] NSWSC 1621
Hearing dates: 6 November 2019
Decision date: 06 November 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   In relation to the VC Lawyers amended notice of motion filed on 18 October 2019, order that $52,500 be paid from $98,420 paid into court by the defendants pursuant to the orders of 18 October 2019 in satisfaction of the equitable lien.
2.   Order that the motion be otherwise dismissed with no order as to costs.
3.   In relation to the balance of the moneys, order that:
(a)   $9,185.55 in relation to the unpaid rent by the plaintiff be paid to the defendants;
(b)   $36,734.45 held in court be paid to the defendants on account of the costs payable by the plaintiff pursuant to the orders of 5 February 2019 and 18 October 2019.

Catchwords: CIVIL PROCEDURE – Notice of Motion – Application by law firm seeking declaratory relief and claiming an equitable lien over a settlement sum that had been paid into court – where the applicant was the law firm acting for the plaintiff – where the applicant’s legal fees remain outstanding – where motion dealt with after determination of the substantive issue in the proceedings – whether the applicant had standing – whether an equitable lien had arisen in the present case – whether the applicant was instrumental in obtaining the settlement result – held there was a sufficient causal link between the applicant’s efforts and the settlement result – equitable lien established.
Cases Cited: Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470
Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd (No 2) (1991) 28 FCR 308
Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; [1993] FCA 667
Canatan Holdings Pty Ltd v Audori Pty Ltd (Federal Court, Einfeld J, 22 February 1995, unrep)
Doyles Construction Lawyers v Harsands Pty Ltd (Supreme Court (NSW), McLelland CJ in Eq, 24 December 1996, unrep)
Ex Parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Kison v Papasian (1994) 61 SASR 567
Macura v Sarasevic [2019] NSWSC 1409
Roam Australia Pty Ltd v Telstra Corporation Ltd t/as Telecom Australia [1997] FCA 980
Twigg v Keady (1996) FLC 92-712
Worrell v Power & Power (1993) 46 FCR 214
Category: Procedural and other rulings
Parties: Branco David Macura (Plaintiff)
Dragan Sarasevic (First Defendant)
Milena Mijatovich (Second Defendant)
Vertzayas Lawyers Pty Ltd (Applicant on motion)
Representation:
Counsel:
K Young (Applicant on motion)
J Bartos (Defendants/respondents on motion)
L Myers (as tutor for plaintiff/respondent on motion)
Solicitors:
AA Tees (Plaintiff/respondent on motion)
Jordan’s Law Practice (Defendants)
Vertzayas Lawyers Pty Ltd (Applicant on motion)

File Number(s): 2017/00336881
Publication restriction: Nil

Judgment

HER HONOUR: Before me for hearing this morning is an application, by amended…

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.

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Details

Case: [2019] NSWSC 1621
Decision Date: 06 November 2019

CaseChat Overview and Summary

The case of Macura v Sarasevic (No 2) involved a law firm, acting on behalf of the plaintiff, applying for declaratory relief and an equitable lien over a settlement sum that had been paid into court. The application was made after the substantive issue in the proceedings had been determined, and the law firm's legal fees remained unpaid. The law firm argued that it had a right to claim an equitable lien over the settlement sum due to its instrumental role in obtaining the settlement. The court was required to determine whether the law firm had standing to make such an application and whether an equitable lien had arisen in the present case.

The court examined the nature of the law firm's involvement in the proceedings and the strength of the causal link between its efforts and the settlement result. It was established that the law firm had played a significant role in achieving the settlement, and the court found that there was a sufficient causal link between the law firm's efforts and the settlement result. Consequently, the court held that the law firm had standing to apply for an equitable lien and that such a lien had indeed arisen in the present case. The law firm was therefore granted the equitable lien over the settlement sum to the extent of its unpaid legal fees.

The court's decision in Macura v Sarasevic (No 2) highlights the importance of the causal link between a law firm's efforts and the settlement result in determining whether an equitable lien may be claimed over a settlement sum. In this case, the court found that the law firm had a sufficient causal link and therefore granted the equitable lien as sought. This decision provides guidance for law firms seeking to establish an equitable lien over settlement sums in similar circumstances.

Orders