Coshott v Coshott [2015] FCA 1284

Coshott v Coshott [2015] FCA 1284

An unpaid solicitor's possessory lien on a certificate of title, and its replacement fund in Court, remains valid for recovering costs and properly claimable interest, not extinguished by the mere passage of limitation periods under s 63 of the Limitation Act 1969 (NSW), due to the operation of s 68 and the inherent nature of the lien as a passive proprietary interest.

Jurisdiction
Australia
Judgment Date
23 November 2015
Procedural Posture
Costs Application Within Broader Bankruptcy/property Proceedings / Post Sale, Interlocutory Application for Payment Out and Costs Order
Outcome
Payment out of the fund in Court to solicitors for assessed costs and interest; dismissal of respondent's interlocutory application; costs ordered against Mr and Mrs Coshott.
Legal Topics
["solicitor's Lien" 'possessory Lien' 'statute of Limitations' 'assessment of Legal Costs' 'extinguishment of Debts' 'interest on Costs' 'enforcement of Lien Against Fund']
['bankruptcy' 'property Law' 'legal Profession' 'civil Procedure'] ["solicitor's Lien" 'possessory Lien' 'statute of Limitations' 'assessment of Legal Costs' 'extinguishment of Debts' 'interest on Costs' 'enforcement of Lien Against Fund']

Case Brief

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Procedural Posture

Costs Application Within Broader Bankruptcy/property Proceedings / Post Sale, Interlocutory Application for Payment Out and Costs Order

Legal Issues

  1. 1 ["Whether a solicitor's lien over a certificate of title is extinguished by the statute of limitations" 'Whether the lien was preserved when the certificate of title was replaced by a fund in Court' 'Whether costs and interest assessed and claimed by solicitors are recoverable via the lien']

Ratio Decidendi

An unpaid solicitor's possessory lien on a certificate of title, and its replacement fund in Court, remains valid for recovering costs and properly claimable interest, not extinguished by the mere passage of limitation periods under s 63 of the Limitation Act 1969 (NSW), due to the operation of s 68 and the inherent nature of the lien as a passive proprietary interest.

Court Disposition

Payment out of the fund in Court to solicitors for assessed costs and interest; dismissal of respondent's interlocutory application; costs ordered against Mr and Mrs Coshott.

Orders

  • ['There be paid out to Mr Stephen Barry and Mr Martin Board the sum of $265,911.97, calculated to 3 November 2015, together with interest at the same rate up to 23 November 2015.' 'Mr Barry and Mr Board bring in short minutes of order specifying the final amount to be paid within seven days.' 'Any remaining amount...