Solicitor And Client – Liens

Quinn v Lovell [2011] QSC 396

PROCEDURE – COSTS – SOLICITOR AND CLIENT – LIENS

This application is for a direction that the Respondent give a written direction to a firm of solicitors to pay $93,178.66 to the applicant’s solicitor’s trust account, together with interest on $84,493.57 from 22 June 2011.

The amount is said to be payable to the applicant as costs relevant to an action brought by the deceased Ms Watkins, against her neighbour, Ms Christian. Ms Watkins action settled on 2 June 2010 on terms that Ms Chrisitian pay her $80,000 and her costs to be assessed by a costs assessor on the indemnity basis where some aspects of the costs were agreed. The costs assessor came to the figure of $93,178.66 and Ms Christian paid the amount into her solicitors trust account and paid Quinn & Scattini the figure of $80,000. Her solicitors Johnsons are holding that sum in anticipation of a court order.

Ms Watkins died on 21 July 2010 and on 5 April 2011 Mr Lovell, a solicitor and the respondent to this application, was appointed as the administrator of her estate. He is empowered by the order appointing hum to collect her assets and pay her debts.

Douglas J at [8] said that there is no doubt the money held by Johnsons is an asset of the estate but in my opinion it is subject to a solicitors particular lien as part of the subject matter of the action against Ms Christian that can be said to have been recovered or preserved by the work done in the action. The fact that the property is not yet in the possession of the applicant does not prevent the lien from arising as this type of lien does not depend on any proprietary or possessory relationship of the solicitor to the property. To back this up the judge referred to a number of cases including Halvanon Insurance Co Ltd v Central Reinsurance Corp, Mercer v Graves and Mason v Mason where it was held that it is not in truth a lien but a right to ask the court to interfere equitably to protect the rights of the unpaid solicitor.

The right to the lien by the applicant is enhanced by the presence of clause 12 in the costs agreement which in the judges view amounted to an agreement to authorise the applicant to receive the money from Johnsons on Ms Watkins behalf.

In the circumstances the applicant is entitled to exercise the right to make a claim to payment to it of the fund held by Johnsons and than an appropriate way of enforcing the lien and the costs agreement is to make a direction of the type sought by the applicant.

He directed that the respondent give a written direction to Johnsons solicitors to pay the sum of $93,178.66 with accretion if any to the trust account of the applicant solicitors. As the applicant has been held out of those fees since 22 June 2011 it also seems appropriate to direct that the respondent pay the applicant interest on the sum claimed of $84,493.58 at nine percent per annum from 22 June 2011 until the date of payment of that sum to the applicant.