Twigg & Anor. v Kung - [2002] NSWCA 220

Reported Decision:
(2002) 55 NSWLR 485

New South Wales

Court of Appeal

CITATION: Twigg & Anor. v. Kung & Anor. [2002] NSWCA 220 revised - 29/11/2002

FILE NUMBER(S): CA 40647/00

HEARING DATE(S): 2 July 2002

JUDGMENT DATE:
11 July 2002

PARTIES :

Peter Twigg & Mark Twigg (trading as Adrian Twigg & Co.) - appellant
Patrick Kam Chiu Kung - 1st respondent
Ross Elder McGlynn & Stephen Michael Hahn (trading as McGlynn & Partners) - 2nd respondent

JUDGMENT OF: Stein JA at 1; Hodgson JA at 2; Foster AJA

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 2762/99

LOWER COURT
JUDICIAL OFFICER : Rolfe DCJ

COUNSEL: Mr. P. Brereton SC for appellant
Mr. J. Whittle SC with Mr. A. O'Brien for 1st respondent
Mr. G. Inatey SC for 2nd respondent

SOLICITORS: Adrian Twigg & Co. for appellant
Phillip Yip & Associates for respondents

CATCHWORDS: LEGAL PRACTITIONERS - Solicitor's lien - Notice - Whether notice can be given before lien crystalises - Whether authority to receive can be notice of lien - Requirement of clarity - Effect of lapse of time and change of solicitors.

CASES CITED:
Re Dallas [1904] 1 Ch. 385
Grogan v. Orr [2001] NSWCA 114
James Talcott Ltd. v. John Lewis & Co. Ltd. [1940) 3 AllER 592
Johnstone v. Cox (1881) 19 Ch. 17
Ex Parte Patience (1940) 40 SR(NSW) 96
Lloyd v. Banks (1868) LR 3 Ch.App. 488
Ross v. Buxton (1889) 42 Ch. 190
Squires v. South Australian Steel & Sheet Pty. Ltd. (1987) 45 SASR 142
Welsh v. Hole (1779) 1 Dougl 238
William Brandt's Son & Co. v. Dunlop Rubber Co. Ltd. [1905] AC 454

DECISION: Appeal dismissed with costs

CA 40647/00
DC 2762/99

STEIN JA
HODGSON JA
FOSTER AJA
Thursday 11 July 2002

TWIGG & ANOR. V. KUNG & ANOR.

Judgment

1 STEIN JA: I agree with the reasons of Hodgson JA set out below.

2 HODGSON JA: On 21 July 2000, Rolfe DCJ determined proceedings in which a firm of solicitors Adrian Twigg & Co. sued the respondent Patrick Kung and also another firm of solicitors McGlynn & Partners claiming $115,301.91 plus interest, and in which Mr. Kung cross-claimed against McGlynn & Partners for a similar amount. Relevantly, the orders made by Rolfe DCJ were as follows:

3 Adrian Twigg & Co. have appealed by leave to this court from that decision, to the extent that it was in favour of Mr. Kung, claiming against him judgment in the sum of $62,220.71 plus interest. McGlynn & Partners have been joined as respondents, but at present no order is sought against them; and I will refer to Mr. Kung as the respondent.

4 In 1988, the appellants received instructions from the respondent’s wife to act for her in Family Court proceedings against the respondent; and they continued to act for her until about April 1992.

5 On 27 September 1989, the respondent’s wife…

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 Twigg & Anor. v Kung

Details

AGLC: Twigg and Anor. v Kung [2002] NSWCA 220
Case: [2002] NSWCA 220
Decision Date: 11 July 2002

CaseChat Overview and Summary

The appeal in *Twigg & Anor. v Kung* concerned the validity of a solicitor's lien. The appellants, Twigg and another, sought to challenge the lien claimed by the respondent, Kung, who had previously acted as their legal representative. The dispute revolved around whether Kung had provided sufficient notice of his lien to preserve it.

The central legal issues before the court were whether a solicitor's lien could be validly notified before it had crystallised, whether the authority given to a third party to receive documents constituted notice of the lien, and what degree of clarity was required in such a notice. The court also considered the effect of the passage of time and a change of solicitors on the enforceability of the lien.

The court reasoned that a solicitor's lien, which arises by operation of law, can be notified before it crystallises. It was held that the authority granted to a third party to receive documents on behalf of the client did not, in itself, constitute notice of the solicitor's lien. For a notice to be effective, it must be sufficiently clear and unambiguous to inform the recipient of the existence and nature of the lien. The court found that the notice provided in this instance lacked the necessary clarity.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the costs of the respondent.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Twigg & Anor. v. Kung & Anor. [2002] NSWCA 220 revised - 29/11/2002
FILE NUMBER(S):	CA 40647/00
HEARING DATE(S):	2 July 2002
JUDGMENT DATE:	11 July 2002
PARTIES :	Peter Twigg & Mark Twigg (trading as Adrian Twigg & Co.) - appellant Patrick Kam Chiu Kung - 1st respondent Ross Elder McGlynn & Stephen Michael Hahn (trading as McGlynn & Partners) - 2nd respondent
JUDGMENT OF:	Stein JA at 1; Hodgson JA at 2; Foster AJA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2762/99
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	Mr. P. Brereton SC for appellant Mr. J. Whittle SC with Mr. A. O'Brien for 1st respondent Mr. G. Inatey SC for 2nd respondent
SOLICITORS:	Adrian Twigg & Co. for appellant Phillip Yip & Associates for respondents
CATCHWORDS:	LEGAL PRACTITIONERS - Solicitor's lien - Notice - Whether notice can be given before lien crystalises - Whether authority to receive can be notice of lien - Requirement of clarity - Effect of lapse of time and change of solicitors.
CASES CITED:	Re Dallas [1904] 1 Ch. 385 Grogan v. Orr [2001] NSWCA 114 James Talcott Ltd. v. John Lewis & Co. Ltd. [1940) 3 AllER 592 Johnstone v. Cox (1881) 19 Ch. 17 Ex Parte Patience (1940) 40 SR(NSW) 96 Lloyd v. Banks (1868) LR 3 Ch.App. 488 Ross v. Buxton (1889) 42 Ch. 190 Squires v. South Australian Steel & Sheet Pty. Ltd. (1987) 45 SASR 142 Welsh v. Hole (1779) 1 Dougl 238 William Brandt's Son & Co. v. Dunlop Rubber Co. Ltd. [1905] AC 454
DECISION:	Appeal dismissed with costs