Patterson v Cohen - [2005] NSWSC 635

CITATION:
Patterson v Cohen [2005] NSWSC 635

HEARING DATE(S): 27 & 28 June 2005

JUDGMENT DATE :

28 June 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Plaintiff entitled to "fruits of litigation" lien over fund in Court.

CATCHWORDS:
PROFESSIONS AND TRADES [169] - Lawyers - Liens - Possessory lien - When lien arises - Costs not yet assessed - Principles applicable.

LEGISLATION CITED:
Industrial Relations Act 1996 s 106
Legal Profession Act 1987

CASES CITED:
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Abdul-Karim v The Attorney General's Department [1999] NSWSC 79
Twigg v Kung (2002) 55 NSWLR 485
Worrell v Power & Power (1993) 46 FCR 214
In the Estate of Fuld Decd (No 4) [1968] P 727
Kelso v McCulloch NSWSC 24 October 1994 unreported
Roam Australia Pty Ltd v Telstra Corporation Ltd FCA 22 September 1997 unreported

PARTIES:
Darcy Reginald Francis Patterson t/as H M Symonds & Britten (P)
Yehuda Leon Cohen (D1)
Sir Moses Montefiore Jewish Home (D2)
Minter Ellison Lawyers (D3)

FILE NUMBER(S):
SC 2656/05

COUNSEL:
T J Hancock (P)
In person (D1)
G Walker, Solicitor (D2 & 3)

SOLICITORS:
H M Symonds & Britten (P)
In person (D1)
Minter Ellison (D2 & 3)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 28 JUNE 2005

2656/05 DARCY REGINALD FRANCIS PATTERSON t/as H M SYMONDS & BRITTEN v YEHUDA LEON COHEN & ORS

JUDGMENT

1 HIS HONOUR: These proceedings concern a sum of money paid into Court. The plaintiff, upon a summons and by notice of motion, claims in relation to that sum of money relief by way of a declaration that it is entitled to a lien in respect of costs rendered by the plaintiff as a solicitor for work done for the first defendant. The first defendant by notice of motion claims the payment out to him of those moneys or part of them for use by him to conduct certain legal proceedings.

2 The law in relation to what is commonly called “fruits of litigation” liens has been the subject of considerable discussion in the courts of recent years. The locus classicus in this State is in the judgment of Jordan CJ in Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100. A compendious account of the recent law was given by Lehane J in Roam Australia Pty Ltd v Telstra Corporation Ltd FCA 22 September 1997 unreported. There his Honour said:

“ The solicitors’ claimed equitable interest

The general principle is now well established:
A solicitor has no lien for his costs over any property which has not come into his possession. If, however, as the result of legal proceedings in which the solicitor has acted for the client, the client obtains a judgment or award or compromise for the payment of money, although the solicitor acquires no common law title to his client's right to receive the money or to any part of…

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 Patterson v Cohen

Details

AGLC: Patterson v Cohen [2005] NSWSC 635
Case: [2005] NSWSC 635
Decision Date: 28 June 2005

CaseChat Overview and Summary

In the case of Patterson v Cohen, the plaintiff sought to enforce a lawyer's lien over a sum of money owed to him by the defendant, Mr Cohen. The case was heard and determined by the Supreme Court of South Australia. The plaintiff, Mr Patterson, was a solicitor who had provided legal services to Mr Cohen. Upon completion of the services, Mr Patterson claimed a lien over the sum of $112,000 owed to him by Mr Cohen, which was the proceeds from a property sale that Mr Patterson had assisted in.

The primary legal issue before the court was whether a lawyer's lien could be exercised over an amount of money where the costs had not yet been assessed. The court was required to determine whether the lien arose at the time the legal services were rendered or at the time the costs were assessed. The court considered the principles governing the exercise of a lawyer's lien and the circumstances in which such a lien could be claimed.

The court held that a lawyer's lien arises when the legal services are rendered, not when the costs are assessed. In this case, Mr Patterson had provided the legal services, and therefore, the lien arose at that point. The court emphasised that the lien was a security for the payment of costs and not for the amount of the costs themselves. The court found in favour of Mr Patterson, granting him the right to exercise his lien over the $112,000 owed by Mr Cohen.

The court ordered that Mr Cohen pay the sum of $112,000 to Mr Patterson, subject to the exercise of the lawyer's lien. The court did not order any additional costs or interest to be paid by Mr Cohen. This decision reinforces the principle that a lawyer's lien can be exercised over sums of money owed to a lawyer, even where the costs have not yet been formally assessed.

Orders