Samaha v El-Hawache

[2005] NSWSC 967

CITATION:	Samaha & Anor v El-Hawache [2005] NSWSC 967
HEARING DATE(S):	15 September 2005
JUDGMENT DATE :	15 September 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Defendant ordered to deliver Plaintiffs' file to new solicitor.

CATCHWORDS:	SOLICITOR'S LIEN - COSTS - Whether previous solicitor should be ordered to render bill of costs and surrender file on condition.
LEGISLATION CITED:	Legal Profession Act 1987 (NSW) - s.209C
PARTIES:	Brian Samaha - First Plaintiff Pauline Samaha - Second Plaintiff Sayed El-Hawache - Defendant
FILE NUMBER(S):	SC 4878/05
COUNSEL:	A. Canceri - Plaintiff R. Johnson (Sol) - Defendant
SOLICITORS:	James Lahood & Assoc - Plaintiff Sid Hawach - Defendant

LOWER COURT JURISDICTION:

Ex tempore

1    The Plaintiffs were formerly the clients of the Defendant, who is a solicitor. The Defendant was acting for them in some litigious matter.

2    The Plaintiffs decided to withdraw their instructions from the Defendant and to instruct another solicitor. The new solicitor attempted to obtain from the Defendant the Plaintiffs' files relating to the matter. There were several attempts by the new solicitor to contact the Defendant in an endeavour to obtain the files and to discuss the matter. Those endeavours to communicate with the Defendant were unsuccessful because the Defendant did not return calls or reply to correspondence.

3 A response from the Defendant was elicited when, in accordance with previous advice to this effect, the Plaintiffs commenced proceedings in this Court under s.209C of the Legal Profession Act 1987 (NSW) for orders under that section. The Defendant resists those orders on grounds to which I will come shortly.

4    The Plaintiffs, by their new solicitor, have offered a means of satisfying the Defendant as to the payment of his proper costs. Firstly, they require a bill of costs from the Defendant. The Defendant has provided a memorandum of fees which clearly does not conform with the requirements for a bill of costs set out in Regulation 45 under the Legal Profession Act. That memorandum of fees was provided only after several unsuccessful attempts had been made by the new solicitor to communicate with the Defendant and to obtain the file.

5    The new solicitor for the Plaintiffs has proffered an undertaking to the Defendant that he will preserve the Defendant's lien for costs over the Plaintiffs' file and will return the file on completion of the proceedings for which it is required. The Defendant says that undertaking is not satisfactory.

6    The new solicitor has offered that his clients will enter into a tripartite deed which is propounded by the Law Society to deal with disputes of this very character. The terms of that deed provide, inter alia, in Clause 7 that the new solicitor is to pay within 21 days of receipt and availability of clear funds of the client the costs of the former solicitor in certain circumstances where it is demonstrated that the solicitor is entitled to receive that amount of costs.

The Defendant has not availed himself of the Plaintiffs' offer through their solicitor to enter into that deed.

7    Mr Johnson, who appears for the Defendant, says firstly that the order should be refused because there is no evidence that the Plaintiffs themselves are prepared to enter into the tripartite deed. In my opinion, there is no substance or merit in this argument. It was not an objection taken by the Defendant when the deed was proffered to him and, in any event, it is quite obvious that the new solicitor, on the Plaintiffs’ behalf, is offering execution of the deed by all necessary parties, that is, including the Plaintiffs.

8    Secondly, Mr Johnson says that no order for the provision of a bill of costs is necessary in the circumstances. I do not agree. The lack of response from the Defendant in this matter demonstrates amply, in my opinion, that the Defendant is not prepared to act diligently and with professional expedition. The memorandum of fees which he has provided is not a bill of costs. A proper bill of costs ought to be provided. If a proper bill of costs is not provided and assessed, then the Defendant will simply not be entitled to be paid, if he is entitled to be paid anything.

9    Thirdly, Mr Johnson says that a proper protection for the payment of the Defendant's proper costs would be an irrevocable authority given by the Plaintiffs to their solicitors to pay the Defendant's costs when assessed. It seems to me that is precisely what Clause 7 of the tripartite deed propounded by the Law Society is designed to achieve.

10    It seems to me that the Defendant has demonstrated an unprofessional dilatoriness and recalcitrance in dealing with this matter. In my opinion, the only way of dealing with the matter promptly is to make orders that he comply with his professional responsibilities.

11 Accordingly, in accordance with s.209C(1) of the Legal Profession Act, I order that the Defendant give to the Plaintiffs a bill of costs in respect of any legal services provided by the Defendant being the subject matter of a memorandum of fees from the Defendant to the Plaintiffs dated 2 September 2005.

12    I order that the Defendant give to the Plaintiffs' solicitors within twenty-four hours the Plaintiffs' files relating to the matter which is the subject of the Defendant's memorandum of fees dated 2 September 2005.

13    I note that the undertaking of the Plaintiffs' new solicitor, namely James Joseph Lahood, enclosed with his letter to the Defendant dated 2 September 2005, remains on foot.

14 The only condition which I will impose upon the making of the order pursuant to s.209C(1)(b) for the delivery up of the Plaintiffs' files is that Mr Lahood confirms in writing to the Defendant within twenty-four hours that the undertaking which he has previously given remains on foot.

15    I do not think that it is appropriate to impose as a condition that the parties enter into the tripartite deed propounded by the Law Society because the Defendant may frustrate the orders which I have made by choosing not to enter into the deed himself. Accordingly, the orders will be as I have indicated.

16    I order that the Defendant pay the Plaintiffs' costs of the Summons.

– oOo –