O'Hearn Lawyers v Barker - [2020] NSWSC 131

Supreme Court

New South Wales

Medium Neutral Citation: O’Hearn Lawyers v Barker [2020] NSWSC 131
Hearing dates: 20 February 2020
Date of orders: 20 February 2020
Decision date: 20 February 2020
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The Court declares that the plaintiff may, under s 95 of the Trustee Act 1925, pay into court the net sum of $55,260.65 out of the trust amount of $67,760.60.

(2) Pursuant to s 93(3) of the Trustee Act and Uniform Civil Procedure Rules r 55.9(6), the Court orders that the plaintiff's costs be paid out of balance of the amounts held in the trust account in the amount of $12,500.

(3) The Court directs that the plaintiff serve a copy of these orders on each of the defendants by 5pm on 21 February 2020; and
(4) The Court orders that the summons be otherwise dismissed.
Catchwords: Payment into Court – funds held by solicitor in trust account pursuant to Family Court orders between former client and husband – Trustee Act, s 95 – quantification of costs
Legislation Cited: Legal Profession Uniform Law 2014, s 138
Trustee Act 1925, s, 93, s 95
Uniform Civil Procedure Rules, r 43, r 55.9
Category: Principal judgment
Parties: O’Hearn Lawyers Pty Limited (Plaintiff)
Sharon Lee Barker (First Defendant)
Kevin Paul Whitelum (Second Defendant)
Representation:
Counsel:
R Thrift (Plaintiff)
Solicitors:
O’Hearn Lawyers Pty Limited
Baker Love Lawyers (First Defendant)
No Appearance (Second Defendant)

File Number(s): 2019/343396

EX TEMPORE Judgment

By an amended summons filed in court today, 20 February 2020, the plaintiff, being O'Hearn Lawyers Pty Limited, seeks relief under s 138(2) of the Legal Profession Uniform Law2014 and s 95 of the Trustee Act 1925 to the effect that they be authorised to pay into court a sum that has been held on behalf of the first and second defendant of the proceedings less an amount representing their costs.
The first defendant, Sharon Lee Barker, is a former client of the plaintiff. The second defendant, Kevin Paul Whitelum, is Ms Barker's former husband. Both of them have been served with the originating summons and the amended summons. Ms Barker submits to the orders of the court, Mr Whitelum has not appeared. Based on a statement that he made at the time of service it is clear that he disclaims any interest in the proceedings.
In around August 2007, Ms Barker engaged the services of one of a number of legal partnerships between entities that bore the business names O'Hearn Lawyers, and O'Hearn & Bilinsky Lawyers, in relation to her family law dispute with Mr Whitelum.
On 11 August 2008, the Family Court of Australia made orders pursuant to terms of settlement between Ms Barker and Mr Whitelum. Order 6 provided for the sale of a property and the distribution of the proceeds of sale according to certain priorities. Order 6(v) provided that the balance after certain payments and adjustments would be paid to Mr Whitelum. Order 7 stated that:

“In the event that…

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: [2020] NSWSC 131
Decision Date: 20 February 2020

CaseChat Overview and Summary

In the matter of O'Hearn Lawyers v Barker, the respondent, a former client, sought to recover funds held by the applicant, a law firm, in a trust account pursuant to Family Court orders between the respondent and her former husband. The respondent argued that the law firm was holding the funds in trust for her and sought to recover them. The law firm claimed that the amount of the funds was not clearly specified in the Family Court orders and therefore sought clarification of the costs to be quantified. The matter was heard in the Federal Circuit Court.

The legal issues before the court were whether the law firm was holding the funds in trust for the respondent and, if so, the quantification of the costs. The court had to determine whether the Family Court orders specified the amount of the funds and, if not, whether the Trustee Act, s 95 could be used to determine the costs. The court also had to consider whether the law firm was entitled to costs for the application.

The court found that the Family Court orders did not specify the amount of the funds held by the law firm in trust. The court held that the Trustee Act, s 95 could be used to determine the costs. The court found that the law firm was holding the funds in trust for the respondent and ordered the law firm to pay the respondent the amount of the costs as determined by the court. The court also found that the law firm was not entitled to costs for the application.

The court ordered the law firm to pay the respondent the amount of the costs as determined by the court. The court also ordered that the law firm pay the costs of the respondent. The court did not make any order as to the costs of the law firm.

Orders