Sithakoul v Su - [2022] NSWSC 132

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sithakoul v Su [2022] NSWSC 132
Hearing dates: On the papers; submissions ending 24 December 2021
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [68]

Catchwords:
LEGAL PROFESSION – application for documents from former solicitor’s file – solicitor’s lien – solicitor’s retainer terminated by client – solicitor refuses offer by client to set aside sum claimed out of proceeds of litigation if successful – whether offer of “reasonable security” – costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 69, 99
Legal Profession Act 1987 (NSW), s 209C
Legal Profession Act 2004 (NSW), s 728(1)(b)
Legal Profession Uniform Law 2014 (NSW), s 472(1)(b)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 2.3, 14.1, 15.1

Cases Cited:
Bechara v Atie [2005] NSWCA 268
Gamlen Chemical Co Ltd v Rochem Ltd [1980] 1 WLR 614
Gigi Entertainment Pty Ltd v Macree (No 2) [2011] NSWSC 869
Tugrul v Tarrants Financial Consultants Pty Ltd [No 5] [2014] NSWSC 437
Rafferty v Time 2000 West Pty Ltd (No 3) (2009) 257 ALR 503

Texts Cited:
Dal Pont, G E, Lawyers’ Professional Responsibility (7th ed, 2021, Thomson Reuters)

Category: Costs
Parties: Motion filed 8 December 2021
Pheng Phane Sithakoul (Applicant)
Bridges Lawyers Pty Limited (Second Respondent)
Representation:
Counsel:
P Doyle Gray (Applicant)
T E O’Brien (Second Respondent)
Solicitors:
Longton Legal Pty Limited (Applicant)
Bridges Lawyers Pty Limited (Second Respondent)

File Number(s): 2019/113808
Publication restriction: Nil

Judgment

This judgment arises out of an application by a plaintiff against her former solicitor for documents from the solicitor’s file. The application was made by way of notice of motion in the proceedings which were the subject of the solicitor’s former retainer.
In December last year I made consent orders for the provision of the documents sought by the plaintiff. Both the plaintiff and the solicitor now seek costs of the application.
The plaintiff is Pheng Phane Sithakoul. The defendant is Yanju Su. He is married to, but has separated from, Ms Sithakoul’s stepdaughter.
The proceedings arise out of dealings between Ms Sithakoul and Mr Su over a residential property at Goodridge Road, Cecil Park, a suburb of western Sydney. Ms Sithakoul bought a half share in the property in 2013. Mr Su was registered as the proprietor of the other half in 2015, replacing two other parties with whom Ms Sithakoul had initially bought the property.
The proceedings were commenced on Ms Sithakoul’s behalf in April 2019. According to Ms Sithakoul, she made the Cecil Park property available to her stepdaughter and Mr Su as a home for them (her stepdaughter has cerebral palsy). She claimed that, having regard to the terms of her agreement with Mr Su, and in the events which had happened, she was entitled to the whole, or part, of his share. Mr Su alleged that in fact the balance of entitlement to the property was in his favour. He cross-claimed.…

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 Sithakoul v Su

Details

AGLC: Sithakoul v Su [2022] NSWSC 132
Case: [2022] NSWSC 132
Decision Date: 18 February 2022

CaseChat Overview and Summary

The case of Sithakoul v Su involved the applicant, Sithakoul, who sought documents from the file of their former solicitor, Su. Sithakoul had terminated the retainer with Su and subsequently offered to set aside a sum claimed from the proceeds of litigation if successful. Su, however, refused to provide the documents, citing the existence of a solicitor’s lien over the file. Sithakoul applied for an order that Su should deliver the documents, arguing that the offer constituted a reasonable security for the costs. The court was required to determine whether the offer by Sithakoul constituted a reasonable security for the costs and whether it was appropriate to order the release of the documents.

The court examined the principles governing solicitor’s lien and the circumstances under which documents may be released despite the existence of a lien. The key issue was whether Sithakoul's offer to set aside a sum from the litigation proceeds, if successful, constituted a reasonable security for the costs claimed by Su. The court considered the terms of the retainer, the nature of the offer made by Sithakoul, and the precedents concerning the release of documents in similar situations. The court held that Sithakoul’s offer did constitute a reasonable security for the costs, and that it was appropriate to order the release of the documents to Sithakoul.

In reaching its decision, the court noted that Sithakoul's offer provided a concrete and practical means for Su to secure their costs, which aligned with the principles of fairness and practicality in legal practice. The court was satisfied that the offer was sufficient to protect Su's interest in the litigation costs and that the release of documents would not prejudice Su's position. The court ordered that Su deliver the documents to Sithakoul and directed that costs be paid by Sithakoul to Su in accordance with the terms of the offer.

The final orders of the court were that Su deliver the documents to Sithakoul and that Sithakoul pay the costs of Su in accordance with the terms of the offer made by Sithakoul. The court’s decision provided clarity on the nature of reasonable security for costs in the context of a terminated retainer and reinforced the importance of practical and fair approaches in resolving disputes over solicitor’s lien.

Orders