Sainuddin v Brady Flinders Pty Ltd (No. 3)

[2012] VCC 932

d

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-10-00976

NANCY SAINUDDIN	Plaintiff
v
BRADY FLINDERS PTY LTD & ANOR  (ACN 085 343 488)	Defendants

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2012
DATE OF JUDGMENT:	21 June 2012 ( Revised)
CASE MAY BE CITED AS:	Sainuddin v Brady Flinders Pty Ltd (No. 3)
MEDIUM NEUTRAL CITATION:	[2012] VCC 932

REASONS FOR JUDGMENT

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Catchwords: Costs – solicitor’s lien- whether solicitors’ work contributed to clients obtaining judgment.

Taxation of costs – risk that party not able to attend taxation of costs- whether Court should tax costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self represented
For the First Defendant	Mr M Muir	Corrs Chambers Westgarth
For the Applicant	Mr C. W. Summons	Whitehead Summons Pty Ltd

HIS HONOUR:

1       There are two matters that I have to decide.  The first is an application by Whitehead Summons Pty Ltd, who formerly acted for the plaintiff, for the court to recognise a solicitor’s lien over part of the proceeds of the judgment, which is the subject of the order of 31 May 2012.  The second matter is whether I should  tax the plaintiff’s costs  in accordance with that order.

2       Mr Summons, who represented Whitehead Summons, seeks an order, on behalf of Whitehead Summons, that various sums of costs and interest be paid into court to await the outcome of proceedings in the Magistrates’ Court in which he seeks a judgment for costs against Ms Sainuddin.  Ms Sainuddin has a counterclaim in that proceeding, which has been recently delivered.  Ms Sainuddin has asked me to direct that all the proceedings be transferred to this court and be determined at a point in the middle of July.  As I explained to Ms Sainuddin, I do not have the power to do that.  Any such order has to be made following an application to both courts, and is usually processed more promptly, if it is sought, by consent.  Mr Summons has, in effect, indicated that he cannot consent to such an order because of his need to act in accordance with instructions from his insurers, who have been notified of the counterclaim lodged by Ms Sainuddin.

3       The courts recognise what is called a fruits of litigation lien that a solicitor can assert.  It is necessary for the solicitor to establish that there is a sufficient causal link between the solicitor’s efforts and the result, so that the solicitor may be regarded as having been instrumental in obtaining the result.  In the judgment of Roam Australia Pty Ltd v Telstra Corp Ltd t/as Telecom Australia,[1] Lehane J of the Federal Court said:

“Where solicitors have been actively involved over a considerable period in acting for a party to successful litigation, the conclusion is likely to follow that the solicitors have been instrumental in obtaining the result, or that the result is (at least in part) due to the solicitors’ efforts.”

[1][1997] FCA 980

4       Mr Summons relies on the work that he says Whitehead Summons performed for Ms Sainuddin in the period March 2009 to 7 February 2011.  Ms Sainuddin is critical of at least part of the work done by Mr Summons, and indeed as I understand it that criticism has found its way into the counterclaim which has been recently filed in the Magistrates’ Court.  It may be that in the Magistrates’ Court only part, or perhaps none, of the costs claimed by Whitehead Summons will  be awarded against Ms Sainuddin.  However, the authorities make it clear that the amount of the costs do not have to be quantified at the time the court decides whether a lien should be recognised.

5       In my opinion, the evidence establishes that the actions of Whitehead Summons were at least, in part, instrumental in obtaining the judgment that Ms Sainuddin achieved in the litigation.  In those circumstances, upon Whitehead Summons giving the usual undertaking as to damages, that was required in  Simpson v Rowe (nee Morganti)[2] by Habersberger J, I will order that the sums identified by Mr Summons be paid into court to await the outcome of the Magistrates’ Court proceeding.  I am not deciding that those amounts should be paid to Mr Summons, there is litigation on foot concerning them, but it is appropriate that the lien be recognised, and it is justified by the material before me.

[2][2011] VSC 149

6       I have taken into account Ms Sainuddin’s submission that I should not reduce the amount of the judgment, awarded to her.  I consider, however, in the circumstances, that the court should require that Brady Flinders pay part of that sum into court to await the outcome of the Magistrates’ Court proceedings, and I so order.

7       Mr Summons  also applied for the making of a freezing order in respect of an amount of costs awarded by Judge Davis against Ms Sainuddin when she unsuccessfully sought a mandatory injunction that the Whitehead Summons  file be handed over to her.  That amount of costs was later taxed by the Costs Court.  I pointed out during submissions that the lien would probably not apply to such a costs order, because it was not an amount of money payable to a solicitor for solicitor’s work, but money payable in effect to Mr Summons as a litigant.  I also pointed out that it did not seem to me that the powers in Rule 37A would permit me to make a freezing order against Brady Flinders, but that order would have to be made against Ms Sainuddin in respect of that sum of about $7,000.  In those circumstances Mr Summons did not press that part of the application, and I do not make that order.

8       But I do order that part of the amount payable by Brady Flinders Pty Ltd to Ms Sainuddin pursuant to the order of the Court of 31 May 2012 be paid to the Registrar of the Court to abide the outcome of the Magistrates’ Court proceedings in accordance with the more detailed order that I will make.

9       I reserve liberty to Ms Sainuddin and to Whitehead Summons to apply for the disbursement of that money in due course.

10      The second matter I have to determine is whether I should tax the costs payable to Ms Sainuddin pursuant to the order made on 31 May 2012.  I ordered that Ms Sainuddin’s costs be taxed by the Costs Court, but reserved liberty to the parties to apply to have the costs to which Ms Sainuddin is entitled taxed by me. That was because Ms Sainuddin’s visa expires on 14 July and there was doubt whether she would be granted a further visa permitting her to remain in Australia.

11      I have given close consideration to whether I should tax those costs.  The court is obviously concerned that Ms Sainuddin has the opportunity to have those costs taxed.  She is entitled to them, there having been no appeal brought from my judgment, and it would be an unfortunate day for the system of justice, if ultimately those costs could not be taxed.

12      However, I have taken into account the following matters.

13      Ms Sainuddin claims a large amount of costs, some $370,000-plus. The defendant is justified in seeking the opportunity to examine that claim and have them properly taxed in the usual way by the Costs Court.

14      Secondly, part of the costs Ms Sainuddin seeks in that $370,000 are part of the costs claimed by Whitehead Summons, which she in turn is disputing in the Magistrates’ Court proceedings.

15      Thirdly Ms Sainuddin has other cases, including in the Costs Court, which will require her attendance in Australia.

16      The Court has a duty is to do equal justice to both parties. While I have  some concerns about Ms Sainuddin’s ability to obtain a further visa, taking all matters into consideration, I do not propose to alter my order that Ms Sainuddin’s costs be taxed by the Costs Court.

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