Petrovich Law Group v Cklamovska

[2010] NSWSC 1370

CITATION:	Petrovich Law Group v Cklamovska & Ors [2010] NSWSC 1370
HEARING DATE(S):	22 November 2010
JUDGMENT OF:	Ball J at 22
EX TEMPORE JUDGMENT DATE:	22 November 2010
DECISION:	1. Notice of Motion dismissed. 2. The plaintiff to pay the third defendant's costs of the motion.
CATCHWORDS:	PROCEDURE – civil – interlocutory injunctions – no arguable case to obtain final relief
LEGISLATION CITED:	Conveyancing Act 1919
CATEGORY:	Procedural and other rulings
PARTIES:	Petrovich Law Group Pty Ltd t/as NSW Compensation Lawyers (Plaintiff) Lile Cklamovska (First Defendant) Lupco Cklamovski (Second Defendant) Trajan Cklamavski (Third Defendant)
FILE NUMBER(S):	SC 2010/81428
COUNSEL:	Ms S Nash (Plaintiff) Mr S Brennan (Defendants)
SOLICITORS:	Sally Nash & Co (Plaintiff) JK Solicitors (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

22 NOVEMBER 2010

2010/81428 PETROVICH LAW GROUP PTY LIMITED t/as NSW COMPENSATION LAWYERS v LILE CKLAMOVSKA & ORS

EX TEMPORE JUDGMENT

1 The plaintiff in this matter is a firm of solicitors who acted for the first defendant in respect of a personal injuries claim. Ultimately the first defendant was successful in her claim and she recovered a net amount of approximately $370,000. That amount was paid directly to the first defendant's husband, who is the second defendant.

2 The plaintiff seeks to recover its legal costs in acting for the first defendant. The first defendant has defended that claim on the basis that no costs agreement was entered into between the parties or, alternatively, that the appropriate disclosures were not made by the plaintiff. I accept for the purposes of this application that there is a serious question to be tried in relation to that issue.

3 The second defendant used approximately $83,000 of the $370,000 to repay a mortgage that he had. The second defendant also paid approximately $194,000 to the third defendant, who used the money to repay a mortgage that he had with the Commonwealth Bank. The plaintiff seeks interlocutory orders preventing the third defendant from redrawing that money and other ancillary orders.

4 In support of those orders, the plaintiff says that it is entitled to assert some form of proprietary relief in respect of the $194,000. That claim has two aspects. First, the plaintiff says that the disposition of the original $370,000 by the first defendant to the second defendant was an alienation of property in breach of s 37A of the Conveyancing Act 1919 and is voidable at the instance of the plaintiff. Secondly, as I understand it, the plaintiff asserts that it has a lien in respect of the $370,000 because that amount was recovered as a consequence of services that the plaintiff provided.

5 In my opinion the plaintiff does not have an arguable case to obtain final relief in this matter. The difficulty with the plaintiff's case is that the amount that is the subject of its claim has now been paid to the Commonwealth Bank. Consequently, any claim for final relief must be against it. However, the Commonwealth Bank is not a party to these proceedings, Moreover, so far as the claim under s 37A of the Conveyancing Act is concerned, it seems clear that the Bank is a party to whom the property has been alienated in good faith not having, at the time of alienation, notice of the intent to defraud creditors. Consequently, the $194,000 could not be recovered from it: see s 37A(3). Similarly, insofar as the plaintiff asserts a solicitor’s lien, I do not see how it could assert that lien against the Bank which is essentially in the position of a bona fide purchaser for value without notice.

6 If the plaintiff has no claim in respect of the amount which is now in the hands of the Commonwealth Bank I do not see how it is entitled to any interlocutory relief which seeks in some way or another to preserve the position pending the determination of its application for final relief. In those circumstances the motion should be dismissed.

7 I can see no reason why the plaintiff should not pay the third defendant's costs of the application. Consequently, I make that order

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