Rasma Gulbis v Mikelis Strikis - [2012] NSWSC 807

Supreme Court

New South Wales

Medium Neutral Citation: Rasma Gulbis v Mikelis Strikis [2012] NSWSC 807
Hearing dates: 13 July 2012
Decision date: 13 July 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Defendant/solicitor ordered to transfer Certificate of Title to plaintiff/widow pursuant to Legal Profession Act, s 728 - defendant ordered to pay indemnity costs of proceedings.

Catchwords: LEGAL PRACTITONERS - lien - defendant/solicitor appointed executor of estate of deceased - plaintiff/widow of deceased and registered proprietor of residential property with deceased as joint tenants instructs solicitor to arrange transfer of deceased's interest in property to her - solicitor performs legal work but claims work performed as executor of the estate, not as solicitor for the widow - solicitor does not provide fee disclosure or issue a bill of costs to widow in conformity with Legal Profession Act 2004, Pt 3.2 in respect legal work performed in relation to Certificate of Title - whether solicitor retained by the widow or whether solicitor acting as executor - solicitor claims lien over Certificate of Title issued by Land Titles Office in widow's name - whether order should be made under Legal Profession Act 2004, s 728 for the delivery up of the Certificate of Title to the widow - whether solicitor's lien.
Legislation Cited: Legal Profession Act 2004 (NSW), s 178
Probate and Administration Act 1898 (NSW), s 86
Real Property Act 1900 (NSW)
Cases Cited: Automobile & General Finance Co Ltd v Cowley - Cooper (1948) 49 SR (NSW) 31
Baillieu Knight Frank (NSW) v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Blazai Pty Ltd v Maley t/as MacLarens Solcitors & Attorneys [2012] NSWSC 489
Degmam Pty Ltd (in liq) v Wright (1983) 2 NSWLR 354
Gigi Entertainment Pty Ltd v Macree [2011] NSWSC 856
Harrison v Schipp [2001] NSWCA 13
Hypec Electronics Pty Ltd (in liq) v Mead (2004) 61 NSWLR 169
NMFM Property Pty Ltd v Citibank (No. 11) (2001) 109 FCR 77
White v Bini [2003] FCA 669
Category: Principal judgment
Parties: Plaintiff/cross-defendant:- Rasma Gulbis
Defendant/ cross-claimant:- in person
Representation:
Counsel:

Plaintiff/cross-defendant:- Ms R. Kako
Solicitors:
Plaintiff/cross-defendant:- Michael John O'Neill, J. P. O'Neill Solicitors
Defendant/cross-claimant:- Mikelis Strikis

File Number(s): 2011/399785
Publication restriction: No

EX TEMPORE JUDgment

Rasma Gulbis is a pensioner. Her husband, Vilis Gulbis, died on 19 July 2009. At the time of his death they were joint tenants of a residential property in Dutton Street, Bankstown. The defendant, Mikelis Strikis, a solicitor of this Court, was appointed executor of the deceased's will.

In the dispute before the Court Mrs Gulbis seeks from Mr Strikis the Certificate of Title for the Dutton Street property, of which she is now registered proprietor. But Mr Strikis resists handing it over because he says he is entitled to a lien over it. Mr Strikis says the lien over the Certificate of Title is claimed on two bases. One argument, he first advanced today, is that he acted as the solicitor for Mrs Gulbis, and is…

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: [2012] NSWSC 807
Decision Date: 13 July 2012

CaseChat Overview and Summary

The case of Rasma Gulbis v Mikelis Strikis involved a dispute between a widow, Rasma Gulbis, and her late husband's solicitor, Mikelis Strikis. Rasma sought the transfer of her deceased husband's interest in a jointly-owned residential property to her sole name. Strikis, who had been appointed as the executor of the estate, performed legal work in this regard but claimed that his role was as executor rather than solicitor for Rasma. Strikis did not provide a fee disclosure or issue a bill of costs to Rasma in accordance with the Legal Profession Act 2004, Part 3.2. Strikis asserted a lien over the Certificate of Title issued in Rasma's name and refused to deliver it to her. The primary issue before the court was to determine whether Strikis was retained by Rasma as her solicitor or was acting solely in his capacity as executor, and whether Strikis had a valid lien over the Certificate of Title.

The court examined whether Strikis had a retainer with Rasma or if his actions were purely in his executor capacity. The court found that Strikis had indeed acted as Rasma's solicitor in the property transfer process, as evidenced by his communications and actions on her behalf. Given that Strikis did not comply with the requirements of the Legal Profession Act 2004, Part 3.2, by not disclosing fees or issuing a bill of costs, the court concluded that Strikis's claim to a lien over the Certificate of Title was invalid. The court further determined that Strikis had no right to withhold the Certificate of Title from Rasma.

The court ordered Strikis to deliver the Certificate of Title to Rasma, and dismissed Strikis's claim to a lien over the document. The court's decision was based on Strikis's failure to adhere to the statutory requirements for legal practitioners, and his improper assertion of a lien over the Certificate of Title. This ruling ensured that Rasma could proceed with the transfer of her deceased husband's interest in the property to her sole name.

Orders