SOIA & ANOR -v- BENNETT & ANOR [2003] WASC 158

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 158
Case No:	CIV:1877/2003	Heard:	1 AUGUST 2003
Coram:	MCKECHNIE J	Delivered:	1/08/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Lien discharged
Category:	B
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Parties:	KIM PETER SOIA PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 718) MARTIN LAWRENCE BENNETT BENNETT & CO
Catchwords:	Solicitor's lien When lien waived Turns on own facts
Legislation:	Nil
Case References:	Nil In re Weedman & Ors; In the matter of Bills of Costs of Lynch & Co [1996] 1112 FCA 1 Jankowski & Anor v Mastoris, unreported; SCt of NSW (Eq) (Hodgson J); 19 September 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SOIA & ANOR -v- BENNETT & ANOR [2003] WASC 158 CORAM : MCKECHNIE J HEARD : 1 AUGUST 2003 DELIVERED : 1 AUGUST 2003 FILE NO/S : CIV 1877 of 2003 BETWEEN : KIM PETER SOIA

PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 718)

Plaintiffs

AND

MARTIN LAWRENCE BENNETT

First Defendant

BENNETT & CO

Second Defendant

Catchwords:

Solicitor's lien - When lien waived - Turns on own facts

Legislation:

Nil

Result:

Lien discharged

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr R H B Pringle QC & Mr T Galic

First Defendant : Mr K L Christensen

Second Defendant : Mr K L Christensen

Solicitors:

Plaintiffs : Galic & Co

First Defendant : Rebecca Bennett

Second Defendant : Rebecca Bennett

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

In re Weedman & Ors; In the matter of Bills of Costs of Lynch & Co [1996] 1112 FCA 1
Jankowski & Anor v Mastoris, unreported; SCt of NSW (Eq) (Hodgson J); 19 September 1995

(Page 3)

1 MCKECHNIE J: This is an originating summons for the release of papers held by the plaintiff's former solicitors, now the second defendants. The plaintiff has a trial listed for 11 August 2003 and the papers are said to be required for that trial. In that action the plaintiff is suing Mr Hatzikostis and another. The second defendant acted for the plaintiff in the action until October 2000.

2 There has been considerable delay, to an extent unexplained, which reflects poorly on those involved. On the plaintiff's part there was inaction for nearly a year until 17 June 2003, while the second defendant, despite several communications from the plaintiff's solicitors from that date in circumstances where the matter was obviously urgent, did not formally respond until 9 July 2003 when he asserted a lien over the papers in respect of a sum owing for costs in excess of $17,000. At a period when the lists are full, time had to be found for a Judge to hear and determine this application urgently.

3 The plaintiff is a tutor and the first defendant is a solicitor who practices in the name of the second defendant. The parties for a time had entered into,…

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 Soia v Bennett

Details

AGLC: Soia v Bennett [2003] WASC 158
Case: [2003] WASC 158
Decision Date

CaseChat Overview and Summary

The plaintiffs, Kim Peter Soia and Personalized Tuition Services Pty Ltd, sought the release of documents held by the defendants, Martin Lawrence Bennett and Bennett & Co, the plaintiffs' former solicitors. The plaintiffs needed the documents for an upcoming trial against Mr Hatzikostis and another party. The second defendant had acted for the plaintiffs in the action until October 2000. The defendants asserted a lien over the papers in respect of a sum owing for costs in excess of $17,000.

The court had to decide whether the defendants were entitled to assert a lien over the papers, and if not, whether the lien had been waived. The court considered whether the defendants had effectively waived their right to assert a lien over the papers, and if so, whether the waiver was valid in the circumstances of the case. The court also had to determine whether the plaintiffs were entitled to the release of the documents.

The court found that the defendants had effectively waived their right to assert a lien over the papers. The court considered the evidence and found that the defendants had treated the amount of $14,153.92 as discharged by way of set-off, as evidenced by the Cityfield reconciliation statement and the letter of 19 December 2000. The court also found that the letter of 14 January 2002 confirmed by the letter of 22 July 2002 constituted a waiver of the lien in the particular circumstances of this case, notwithstanding the explanation by the first defendant. The court held that the subsequent assertion of the lien in the letter of 9 July 2003 was ineffective. The court held that the plaintiff was therefore entitled to orders in terms of order 2 of his summons.

The court ordered that the defendants deliver the papers to the plaintiffs within seven days of the date of the judgment.

Orders