Bechara t/as Bechara & Co v Atie & Anor [2005] NSWCA 268

Bechara t/as Bechara & Co v Atie & Anor [2005] NSWCA 268

The primary judge erred in holding that Wyatts' undertaking constituted satisfactory security for the claimant's costs. The solicitor was entitled to withhold possession of the documents until her costs were secured, and her refusal to accept the undertaking was reasonable. The applicant satisfied the requirements of the possessory lien, and the costs order against her was set aside.

Parties
Claimant: Maria Bechara t/as Bechara & Co; First Opponent: Badia Atie; Second Opponent: The Housing Commission of New South Wales (t/as NSW Land & Housing Commission)
Jurisdiction
Australia
Judgment Date
15 August 2005
Procedural Posture
Civil Appeal / Application for Leave to Appeal and Appeal Determination
Outcome
Appeal allowed
Legal Topics
Solicitor's Lien, Costs, Delivery of Client Documents, Solicitors Rules
Legal Profession Civil Procedure Solicitor's Lien Costs Delivery of Client Documents Solicitors Rules

Case Brief

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Parties

Maria Bechara t/as Bechara & Co

Claimant

Badia Atie

First Opponent

The Housing Commission of New South Wales (t/as NSW Land & Housing Commission)

Second Opponent

Procedural Posture

Civil Appeal / Application for Leave to Appeal and Appeal Determination

Legal Issues

  1. 1 Whether the former solicitor was entitled to retain the client's documents pursuant to a possessory lien until her costs were paid or satisfactorily secured
  2. 2 Whether the solicitor's refusal to accept an undertaking from the new solicitor as satisfactory security for costs was reasonable

Ratio Decidendi

The primary judge erred in holding that Wyatts' undertaking constituted satisfactory security for the claimant's costs. The solicitor was entitled to withhold possession of the documents until her costs were secured, and her refusal to accept the undertaking was reasonable. The applicant satisfied the requirements of the possessory lien, and the costs order against her was set aside.

Court Disposition

Appeal allowed

Orders

  • Leave to appeal granted, conditional on the filing of Notice of Appeal within 14 days
  • Order for costs against the claimant made by Judge O'Connor on 6 August 2004 set aside