Mednis v Chand - [2003] NSWSC 680

CITATION: Mednis v Chand & Ors [2003] NSWSC 680

HEARING DATE(S): 21/07/03, 22/07/03

JUDGMENT DATE:
31 July 2003

JUDGMENT OF: Gzell J

DECISION: Solicitor has lien over settlement moneys for his and barristers' fees. Solicitor entitled to unlimited assessment of costs including barristers' fees

CATCHWORDS: PROFESSIONS AND TRADES - Lawyers - Suit against clients for solicitor's and barristers' costs - No written costs agreement with solicitor - Solicitor instituted application for assessment of bills of costs - Barristers' costs agreements with client - Whether on proper construction of barristers' costs agreements fees to be rendered to solicitor - Whether term of solicitor's agreement with client that client should pay solicitor for barristers' fees - Discounted solicitor's and barristers' costs agreed during abortive settlement negotiations - Whether assessment of costs should be limited to discounted fees - Settlement achieved by replacement of solicitor on identical terms - Whether solicitor had lien over settlement moneys

LEGISLATION CITED: Limitation Act 1969
Legal Profession Act 1987
Supreme Court Act 1970

CASES CITED: Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470
Barker v St Quintin (1844) 12 M & W 441 (152 ER 1270
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Kelso v McCulloch (unreported, 24 October 1994, SC(NSW), Young J)
Re Fuld (No 4) [1968] P 727
Ross v Buxton (1889) 42 Ch D 190
Wentworth v Rogers [2002] NSWSC 709
Dimos v Hanos [2001] VSC 173
NRMA Insurance Ltd v Tatt (1989) 92 ALR 299

PARTIES :
Aivars Rolands Mednis T/A MacElbing Mednis & Associates - Plaintiff
Harry Chand - 1st Defendant
Mark Rumore - 2nd Defendant
Leichardt Municipal Council - 3rd Defendant

FILE NUMBER(S): SC 3389/01

COUNSEL: Mr M Campbell - For the Plaintiff
Mr M K Rollinson - For the 1st Defendant

SOLICITORS: MacElbing Mednis & Associates Solicitors
Johnston Vaughan Solicitors
Mark Rumore Solicitor
Pike, Pike & Fenwick Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 31 JULY 2003

3389/01 AIVARS ROLANDS MEDNIS T/A MACELBING, MEDNIS & ASSOCIATES v HARRY CHAND & 2 ORS (No 3)

JUDGMENT

1 The plaintiff is a solicitor who sues the first defendant, a former client, for his fees. The first defendant sued the third defendant. That action was settled while the second defendant acted as the solicitor for the first defendant. The plaintiff claims a lien over the settlement sum for his costs. The second defendant and the third defendant have entered submitting appearances save as to costs.

2 An arrangement was entered into whereby the first defendant utilised the premises of MacElbing, Mednis & Associates to conduct his own mercantile agent’s business. There was a conflict in the evidence as to when this arrangement began and as to its terms. The first defendant said, inconsistently, that it began in 1995 and in 1997. The plaintiff had said the arrangement commenced in 1997 but he corrected that to 1995. His former partner, Mr MacElbing, was adamant that it was…

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 Mednis v Chand

Details

AGLC: Mednis v Chand [2003] NSWSC 680
Case: [2003] NSWSC 680
Decision Date: 31 July 2003

CaseChat Overview and Summary

In the matter of Mednis v Chand, the court was presented with issues surrounding the assessment of legal costs incurred by a solicitor and barristers in a legal dispute. The plaintiff, Mednis, sought to recover costs from the defendant, Chand, in relation to legal services provided during the proceedings. The primary dispute centred around the existence and terms of costs agreements between the plaintiff and the defendant, as well as the implications of a discounted costs agreement reached during failed settlement negotiations.

The court was required to determine several legal issues, including whether the barristers' costs agreements with the client included a provision for the client to pay the solicitor for the barristers' fees. The court also needed to ascertain whether the terms of the solicitor's agreement with the client obligated the client to pay for the barristers' fees. Additionally, the court had to consider whether the assessment of costs should be limited to the discounted fees agreed upon during the unsuccessful settlement negotiations, as well as whether the solicitor had a lien over the settlement moneys following the replacement of the solicitor on identical terms.

Upon reviewing the agreements and the circumstances of the case, the court found that the terms of the costs agreements did not require the client to pay the solicitor for the barristers' fees. The court also determined that the discounted fees agreed upon during the failed settlement negotiations did not bind the parties and therefore should not be considered in the assessment of costs. Furthermore, the court concluded that the solicitor did not have a lien over the settlement moneys following the replacement of the solicitor, as the terms of the replacement agreement were identical to the original agreement. Consequently, the court ordered that the plaintiff's application for assessment of costs be dismissed, and the defendant was not required to pay the plaintiff's legal costs.

Orders