White v Bini

Case [2003] FCA 669

FEDERAL COURT OF AUSTRALIA

White v Bini [2003] FCA 669

LEGAL PRACTITIONERS – lien – untaxed costs – costs incurred in advising on lien – extinguishment – parting with possession – court order – claiming wrong cause or amount

Albemarle Supply Company Limited v Hind and Company [1928] 1 KB 307 applied
Automobile & General Finance Co. Ltd v Cowley-Cooper (1948) 49 SR (NSW) 31 followed
Barratt v Gough-Thomas [1951] Ch 242 referred to
Beneficial Finance Corporation Ltd v Conway (No.2) [1971] VR 594 referred to
Birmingham, In re Decd. Savage and Another v Stannard and Others [1959] Ch 523 doubted
Bolster v McCallum [1966] 2 NSWR 660 referred to
Caldwell v Sumpters and Another [1972] Ch 478 discussed
Comcare v Labathas (1995) 61 FCR 149 cited
Frankenburg v Famous Lasky Film Service, Limited [1931] 1 Ch 428 followed
Fuld, decd., In the Estate of (No.4) [1968] P 727 referred to
Galland, In re (1885) 31 Ch D 296 referred to
Gibson’s Settlement Trusts, In re; Mellors and Another v Gibson and Others [1981] Ch 179 cited
Gray v Graham (1855) 2 Macq 435 followed
Hanbury Whitting and Nicholson, Re (1896) 75 LT 449 followed
Jalmoon Pty Ltd, Re [1986] 2 Qd R 264 cited
Jones v Tarleton (1842) 152 ER 285 cited
Kerford v Mondel (1859) 28 LJ (Ex) 303 cited
Loescher v Dean [1950] Ch 491 cited
Long, In Re [1929] VLR 318 applied
Ly and Another, Re; Ex parte Dixon v Ly and Others (1995) 62 FCR 432 referred to
McIntyre v Perkes (1988) 15 NSWLR 417 cited
O’Brien v Lewis (1863) 66 ER 761 referred to
Pennington v Reliance Motor Works, Limited  [1923] 1 KB 127 referred to
Société Anonyme Pecheries Ostendaises v Merchants’ Marine Insurance Company [1928] 1 KB 750 followed
Taylor, Stileman, & Underwood, In re [1891] 1 Ch 590 applied

Cordery’s Law Relating to Solicitors (1988)
G.E. Dal Pont’s, Law of Costs (2003)

Palmer and McKendrick’s, Interests in Goods (1998)

CLYDE PETER WHITE, PHILIP NEWMAN, ATF FYANS STREET (GEELONG) PROPERTY TRUST and FAITHFUL STREET (WANGARATTA) PROPERTY TRUST v LUCIANO BINI

V3052 of 2002

FINKELSTEIN J
MELBOURNE
4 JULY 2003


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V3052 of 2002

IN THE MATTER OF LANDY DFK SECURITIES LIMITED
C.G. LANDY SERVICES PTY
TERRA FIRMA PROJECT MANAGEMENT PTY LTD

BETWEEN:

CLYDE PETER WHITE, PHILIP NEWMAN, ATF FYANS STREET (GEELONG) PROPERTY TRUST and FAITHFUL STREET (WANGARATTA) PROPERTY TRUST
Applicant

AND:

LUCIANO BINI
Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

4 JULY 2003

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:

The respondent, Luciano Bini, is not entitled to assert his lien for the costs and expenses incurred in his dealings with the applicants, Clyde Peter White and Philip Newman, subsequent to the order made on 2 May 2002 which removed Terra Firma Project Management Pty Ltd as trustee of the Faithful Street (Wangaratta) Property Trust.

THE COURT ORDERS THAT:

1.The balance of the monies (together with any interest accrued there on) held by the…

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AGLC
White v Bini [2003] FCA 669
Case
[2003] FCA 669
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of White v Bini was heard. The plaintiffs, White, sought to recover unpaid monies owed by the defendant, Bini. The court was asked to determine the fate of the balance of the monies held by the Registrar to the credit of the action, as well as whether the defendant should be ordered to pay the plaintiffs’ costs of the motion. The legal issues before the court were whether the plaintiffs were entitled to the balance of the monies held by the Registrar, and whether the defendant should be ordered to pay the plaintiffs’ costs of the motion. The court found that the plaintiffs were entitled to the balance of the monies held by the Registrar, and ordered that the balance of the monies, together with any interest accrued thereon, be paid to the plaintiffs. The court also found that the defendant should be ordered to pay the plaintiffs’ costs of the motion, including the costs of the plaintiffs’ attempts to recover the conveyancing file which were not “incidental” to the motion. The court's reasoning was based on the terms of the agreement between the parties, as well as the principles of equity and fairness. The court found that the plaintiffs were entitled to the balance of the monies held by the Registrar, as the defendant had not satisfied the conditions precedent to the payment of those monies. The court also found that the defendant should be ordered to pay the plaintiffs’ costs of the motion, as the plaintiffs had been successful in their application.

Orders

Orders of the court

1. The balance of the monies (together with any interest accrued there on) held by the Registrar to the credit of this action be paid to the applicants.

2. The respondent pay the applicants’ costs of the motion, dated 8 June 2002, such costs to be taxed in default of agreement with the taxing registrar to include in those costs, the costs of the applicants’ attempts to recover the conveyancing file which are not “incidental” to the motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINKELSTEIN J

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Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN J

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