Legal Research
Cases
Simpson v Rowe

Simpson v Rowe

Case [2011] VSC 149 11 March 2011

Costs

Lien

Compensatory Damages

Legal Professions Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2011 00972

JOHN CHILMAN SIMPSON	Plaintiff
v
ELIZABETH MARY ROWE (NEE MORGANTI)	Defendant

---

JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 MARCH 2011
DATE OF JUDGMENT:	11 MARCH 2011
CASE MAY BE CITED AS:	SIMPSON v ROWE
MEDIUM NEUTRAL CITATION:	[2011] VSC 149

---

Legal Practitioners – Barrister – Costs agreements with client – Lien over proceeds of any settlement or judgment under first costs agreement but not the second – “Fruits of the action” lien – Whether barrister has lien over proceeds of settlement apart from under costs agreement – Items to be included in quantification of lien.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R. Annesley	McKean Park
For the Defendant	Mr D. Triaca	Hunt & Hunt

HIS HONOUR:

This is an application by the plaintiff, John Chilman Simpson, a member of the Victorian Bar, for a declaration that he has a lien over any proceeds of settlement payable to the defendant, Elizabeth Mary Rowe, arising out of Supreme Court proceeding No.7151 of 2006 (“the 2006 proceeding”). In that proceeding Mrs Rowe was the plaintiff, and Mr Simpson acted for a considerable time as her counsel, from the start of the proceeding on 22 June 2006, when an ex parte injunction was obtained restraining any dealings with certain land, until about 23 December 2010. The hearing commenced in late October 2010 and continued through November and December. It was adjourned part heard on 20 December 2010. Eventually, the dispute was settled in late February 2011.

Mr Simpson had entered into a number of costs agreements with Mrs Rowe, presumably because, as was stated in those costs agreements, the solicitors acting for Mrs Rowe did not agree to be responsible for the payment of Mr Simpson’s fees. In those circumstances, Mr Simpson entered into the costs agreements directly with Mrs Rowe.

Under a costs agreement dated 23 February 2010 (“the February costs agreement”) it was provided in clause 7(b) that:

The Client acknowledges and agrees that the Barrister shall be entitled to exercise a lien over the proceeds of any settlement or judgment favourable to the Client obtained in the Matter in respect of all Fees outstanding in accordance with the terms of this agreement.

The costs agreement also had provision for a giving of notice of default which could bring the agreement to an end.

Following the giving of a notice of default on 24 June 2010, a new costs agreement was entered into between the plaintiff and the defendant on 20 August 2010 (“the August costs agreement”). In Recital D to that agreement it was stated that:

This costs agreement supersedes all previous costs agreements made between the Barrister and the Client in the Matter which are agreed to have been terminated with effect from the date of this document. This costs agreement may be enforced in the same way as any other contract.

Despite the…

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 Simpson v Rowe

Details

AGLC: Simpson v Rowe [2011] VSC 149
Case: [2011] VSC 149
Decision Date: 11 MARCH 2011

CaseChat Overview and Summary

In the case of Simpson v Rowe, the dispute arose between the plaintiff, Mr Simpson, and the defendant, Mr Rowe, who was a barrister. The central issue was whether the barrister had a lien over the proceeds of a settlement, separate from the lien provided under their costs agreement. The matter was heard in the Supreme Court of Victoria. The case involved two costs agreements between the parties, the first of which provided for a lien over the proceeds of any settlement or judgment. The second agreement, however, did not include such a lien. The court had to determine whether the barrister had a lien over the settlement proceeds apart from the lien under the first costs agreement, and if so, what items should be included in quantifying the lien.

The legal issues before the court were whether the barrister's lien extended beyond what was specified in the second costs agreement, and if so, what the scope of that lien was. The court examined the terms of both costs agreements and the broader legal principles concerning liens in the context of legal practitioner-client relationships. It needed to assess whether the "fruits of the action" principle applied, whereby a practitioner has a lien over the proceeds of a settlement beyond what is outlined in their costs agreement.

The court concluded that the barrister did indeed have a lien over the proceeds of the settlement, which extended beyond the terms of the second costs agreement. This broader lien was rooted in the principle that a legal practitioner has a lien over the "fruits of the action" - the proceeds of a settlement or judgment. In quantifying this lien, the court determined that it should include all amounts received by the client from the settlement, less any disbursements and costs already paid. The court did not limit the lien to items explicitly covered under the costs agreements. The ruling provided clarity on the extent of a legal practitioner's lien in cases where the terms of a costs agreement may be ambiguous or incomplete.

Orders