National Australia Bank Limited v Daniel George Charles Kiss & Anor
[2006] NSWSC 1426
•21 December 2006
CITATION: National Australia Bank Limited v Daniel George Charles Kiss & Anor [2006] NSWSC 1426 HEARING DATE(S): 11/12/06
JUDGMENT DATE :
21 December 2006JURISDICTION: Supreme Court JUDGMENT OF: Rothman J DECISION: (i) that access be granted to the defendant of the documents produced by Peter Ryan on subpoena issued to him upon condition that the defendant pay into the trust account of his solicitor on the record, Hancock’s Solicitors, the amount of $7,633.60; (ii) until further order of the Court, the amount referred to in the immediately preceding paragraph shall not be released other than to the aforesaid Peter Ryan; (iii) costs of the Notice of Motion shall be reserved costs to be dealt with at the time that the merits of the claimed solicitor’s lien are determined. At that time such costs will be as agreed or assessed CATCHWORDS: DOCUMENTS - Solicitors' Lien - Payment into court - not examine merits of charge - order conditional on a claim being made bona fide - no interests of third party affected - costs of production - photocopying costs disallowed. LEGISLATION CITED: Supreme Court Act 1970 (NSW) CASES CITED: Bolster v McCallum (1966) 85 WN (Part 1) 2818 286
Gebruder Naf v Proton (1890) 25 QBD 13
Re Jalmoon Pty Ltd (1986) 2 QdR 264
Re Marriage of Conroy (1990) 103 SLR 233
Re Suttor (1890) 11 LR(NSW) 401PARTIES: P: National Australia Bank Limited
D1: Mr Daniel George Charles Kiss
D2: Ms Karen Maree MaloneyFILE NUMBER(S): SC 10262/2006 COUNSEL: P: Legzdin
D1, 2: GarrettSOLICITORS: P: Mr MW Hilton, Henry Davis York Solicitors
D1, 2: Mr JL Hancock, Hancocks Solicitors
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONROTHMAN J.
21 December 2006
10262/2006
JUDGMENTNational Australia Bank Limited v Daniel George Charles Kiss & Anor
1 HIS HONOUR: This substantive proceedings before the Court relate to an application by National Australia Bank Limited for possession of a number of identified properties on the south coast of New South Wales. The defendant in those substantive proceedings, Daniel George Charles Kiss, has filed a defence, the details of which are currently irrelevant. For the purposes of the preparation of his defence, Mr Kiss has issued a subpoena for the production by the applicant in this Notice of Motion of documents in the applicant’s possession.
2 The applicant to the Notice of Motion, Peter Ryan (hereinafter “the applicant”) has sought orders the effect of which is to protect what is alleged to be a lien on documents.
3 The orders sought by the applicant are in the following terms:
“(1) That access be granted to the defendant upon condition that the defendant pay into court, or alternatively pay into his current solicitor’s trust account the sum of $7,633.60, such money not to be released other than to Pater Ryan subject to further Order or as agreed.
(2) That the defendant pay to Peter Ryan the sum of $750.00 in respect of compliance with the subpoena.
(4) That either the defendant or Peter Ryan have liberty to apply within seven (7) days.”(3) That the defendant pay the costs as agreed or assessed of this Motion.
4 The applicant claims, and it is accepted, that he is a solicitor admitted to practice in the State of New South Wales. He says that he has acted for the defendants in a number of matters and for that purpose rendered tax invoices which were annexed to an affidavit sworn 22 November 2006. At the time of swearing the affidavit, those tax invoices remained unpaid.
5 Mr Ryan claims a lien on documents in his possession and, for that reason, seeks the Orders in paragraph 1 of the Motion. Further, the applicant seeks a payment of $750.00 which is itemised as the costs of complying with the subpoena. Those costs are itemised in the following way:
| (a) photocopying – 386 pages at 50c per page | $139.00 |
| (b) agency appearance on 9 November | $165.00 |
| (c) agency appearance on next court date | $165.00 |
| (d) various telephone discussions with the defendant’s solicitor | $ 75.00 |
| (e) Supreme Court – filing fee of Notice of Motion | $152.00 |
TOTAL: | $750.00 |
6 It is trite that an attorney has a general lien on all the documents of his client in his possession to meet his general costs: Re Suttor (1890) 11 LR(NSW) 401. I have been referred by the applicant to the judgment of Asprey J in Bolster v McCallum (1966) 85 WN (Part 1) 2818 286. His Honour there said:
- “At common law a solicitor has a lien upon any documents which come into his possession in the course of his employment and in his capacity as a solicitor with the sanction of his clients and which are the property of his clients (see Halsbury’s Laws of England , 3rd ed, vol 36, par 238). The lien only extends to the solicitor’s taxable costs, charges and expenses incurred on the instructions of the clients against whom the lien is claimed and for which those clients are personally liable; and the lien is a general lien extending to all costs due to the solicitor and is not limited to the costs incurred in relation to the particular documents in question or upon the particular instructions in consequence of which the documents came into the possession of the solicitor …. A solicitor having a retaining lien over the documents in his possession is entitled to retain the documents against the clients until the full amount of the solicitor’s taxed costs payable by the clients is paid; and the clients have no right to inspect the documents or to take copies of them.”
7 Further it has been held that the failure to render a bill or the unreasonableness of the bill (or the absence of taxation, assessment or agreement as to the amount) does not stand in the way of a general lien of the kind here claimed: Re Jalmoon Pty Ltd (1986) 2 QdR 264.
8 Notwithstanding the existence of the lien, a court is entitled to order the production to the Court, and access to the documents, if the production of the documents is necessary in the interests of the administration of justice in a particular case. That will certainly be the case if the interests of third parties are prejudiced: in Re Marriage of Conroy (1990) 103 FLR 233, per Elliot J, Family Court of Australia.
9 However, a lien does not run against a third party seeking the production of documents. Therein lies the difficulty. The material adduced by the applicant, being memoranda of fees for professional services, while addressed to the defendant, Mr Kiss, largely deal with services relating to the company and/or companies conducted by Mr Kiss, being Kisscorp Pty Ltd and/or Finance Brokers International, neither of which are the defendant in these proceedings.
10 I accept that the Court will not, in relation to a claim of this kind, examine the merits of the defendant’s claim either as to amount or entitlement: Gebruder Naf v Proton (1890) 25 QBD 13, per Lord Esher MR, with whom, on this issue, Fry and Lopes LJJ agreed. While the Court of Appeal in Gebruder was dealing particularly with the Rules of Court in England, s74 of the Supreme Court Act 1970 (NSW) does not differ in a way which would require a different approach.
11 Section 74 of the Supreme Court Act 1970 (NSW) entitles the Court to order that the party claiming recovery of property be at liberty to pay into the Court, to abide by the event of the proceedings, the amount of money in respect of which the lien or other security is claimed and that upon payment such judgment be given for recovery of the property. The conditions precedent to the capacity of the Court to make such an order is not a determination of the merits of the claim for the lien only that it is bona fide claimed.
12 In the instant proceedings there is significant doubt as to whether or not the memoranda of fees issued are in fact issued against the defendant or against the companies with which he was associated. Nevertheless on the basis of the authorities that deal with the appropriate use of powers such as that contained in s74 of the Supreme Court Act 1970 (NSW), it is appropriate to order the payment into Court of the amount said to be owing before production (or in this case access) of the documents is required and for the Court thereafter to determine the appropriateness of the lien. The amount, relative to the costs of litigation, is not a great amount.
Costs of Production
13 The issue as to the costs of production raise different considerations. I have outlined above the itemisation of the costs said to be conduct money. Perhaps it is somewhat sentimental to reminisce of the time when a subpoena duces tecum required the production of documents, not the photocopying of documents. A subpoena can be (and should be) complied with by the production of the documents in possession, not the production of a photocopy of the documents. The photocopying of the documents is a matter for the protection of the private interests of the person producing, not an answer to the subpoena. I disallow photocopying costs. Likewise, the costs of appearing and filing the Notice of Motion are costs which will be determined when the merits of the lien are assessed.
Orders
14 I make the following orders:
(i) that access be granted to the defendant of the documents produced by Peter Ryan on subpoena issued to him upon condition that the defendant pay into the trust account of his solicitor on the record, Hancock’s Solicitors, the amount of $7,633.60;
(iii) costs of the Notice of Motion shall be reserved costs to be dealt with at the time that the merits of the claimed solicitor’s lien are determined. At that time such costs will be as agreed or assessed.(ii) until further order of the Court, the amount referred to in the immediately preceding paragraph shall not be released other than to the aforesaid Peter Ryan;
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