Milicevic v Vourlas

[2006] NSWSC 401

CITATION:	Milicevic v Vourlas & Ors [2006] NSWSC 401
HEARING DATE(S):	4 May 2006
JUDGMENT DATE :	4 May 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Direction for payment of moneys into Court.
CATCHWORDS:	LEGAL PRACTITONERS - solicitors - claim for charge or lien over fruits of verdict
PARTIES:	Miki Milicevic (Plaintiff) Seseil Vourlas (First Defendant) Hunt & Hunt (Second Defendant) GIO General Insurance Limited (Third Defendant)
FILE NUMBER(S):	SC 2439 of 2006
COUNSEL:	Mr J Jobson (Plaintiff) In person (First Defendant) Ms A Boyd Boland (Second and Third Defendants)
SOLICITORS:	Milicevic Solicitors (Plaintiff) In person (First Defendant) Hunt & Hunt (Second and Third Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 4 MAY 2006

2439/06 MIKI MILICEVIC v VOURLAS

JUDGMENT

1 HIS HONOUR: This is an application by amended summons filed in court this morning for an order that part of the proceeds of a judgment in favour of the first defendant in a Common Law action not be paid to her but that they be held, although it is not properly articulated, pending the proper assessment or agreement as to the costs of the solicitor for the first defendant (plaintiff in the Common Law proceedings) to ensure that he has the benefit of the so-called lien or equitable charge on the fruits of the verdict in respect of his costs in obtaining that verdict.

2 The verdict was for a sum of $469,481.66. From that I have been told, without objection, there are to be deductions of $129,148.89 for workers’ compensation in respect of the same injuries and the sum of $34,033.28 being a refund due to the Health Insurance Commission, both those sums having been included in the verdict moneys. That, of course, is the normal result of Common Law proceedings. The balance remaining, therefore, payable to the plaintiff, would be the sum of $306,300 plus costs.

3 Mrs Vourlas has withdrawn instructions from the solicitor representing her in the Common Law proceedings and she tells the court today that she has engaged the services of a new solicitor. There is some evidence that Mrs Vourlas has stated that she will not agree to pay legal costs but from what she has said to me today she wants a proper itemised bill so that the costs can be properly determined in this case. As I understand it, she does not dispute she will have to pay the amounts assessed or fixed by an assessor. In addition to that she will have the right to the assessed costs of the proceedings which she brought for her own injuries. That is something, of course, which she will obtain advice on from her new solicitor who presumably will endeavour to negotiate those costs by agreement with the solicitors for the defendant in the Common Law proceedings.

4 The defendant in the Common Law proceedings has not been made a party here but it is accepted that it does not really matter because the judgment moneys will be paid by the insurer of that defendant. The second defendant here, namely, Messrs Hunt & Hunt, are the solicitors on the record for the defendant in the Common Law action but, of course, they are instructed by the insurer. They wish to pay the judgment moneys to avoid any interest running on them.

5 In those circumstances, I do not think that it is sensible to make the first order sought in the amended summons, namely, that the second and third defendants be restrained from paying to Mrs Vourlas or on her direction the amount of $250,000 sought to be retained, but rather that the second order should be made that those moneys be paid to the court pending the determination of the costs of the first defendant here in the Common Law proceedings, which costs are payable by Mrs Vourlas to her solicitor. That is the order I propose to make. It would be sensible if once Mrs Vourlas has obtained the services of a new solicitor for that new solicitor to negotiate with the plaintiff here, namely, the former solicitor, for payment of some amount on account of costs, but that is really outside anything that the court can do.

6 I order that the sum of $250,000, being part of the judgment sum in proceedings 20319/04 in the Common Law Division, be paid by the second and third defendants into court pending the assessment of the costs of the plaintiff being the solicitor for Mrs Vourlas in the Common Law action. I order that the costs so assessed be paid to the plaintiff or on his direction subject to any further order of the court out of the said sum of $250,000. I direct that the moneys paid into court be invested so as to earn interest.

7 Liberty to restore on seven days’ notice.

8 The first defendant is to pay the plaintiff’s costs of the proceedings to date.