Mathew CHAINA & Ors v THE PRESBYTERIAN CHURCH (NSW) PROPERTY TRUST & Ors (No 4) [2011] NSWSC 524

Mathew CHAINA & Ors v THE PRESBYTERIAN CHURCH (NSW) PROPERTY TRUST & Ors (No 4) [2011] NSWSC 524

The applicants are entitled to access to the documents for conduct of their case; however, taking into account the risk of non-payment and the applicants' failure to provide genuine security, the release of files should only occur upon the applicants either paying the outstanding sum of $193,543.16, paying it into Court, or providing adequate security (such as a mortgage) to secure that sum.

Jurisdiction
Australia
Judgment Date
07 June 2011
Procedural Posture
Notice of Motion (interlocutory Application) / Application for Release of Documents and Determination of Security for Unpaid Legal Costs
Outcome
Release of documents to proceed only upon payment or security for outstanding legal costs; final orders deferred for parties to draft conditions.
Legal Topics
["solicitors' Lien" 'unpaid Costs' 'security for Costs' 'release of Documents' 'legal Profession Act 2004 S728']
['practice and Procedure'] ["solicitors' Lien" 'unpaid Costs' 'security for Costs' 'release of Documents' 'legal Profession Act 2004 S728']

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Procedural Posture

Notice of Motion (interlocutory Application) / Application for Release of Documents and Determination of Security for Unpaid Legal Costs

Legal Issues

  1. 1 ['Whether applicants should be granted access to their legal files held by former solicitors under s728 of the Legal Profession Act 2004' "What constitutes 'satisfactory security' for unpaid solicitors’ costs"]

Ratio Decidendi

The applicants are entitled to access to the documents for conduct of their case; however, taking into account the risk of non-payment and the applicants' failure to provide genuine security, the release of files should only occur upon the applicants either paying the outstanding sum of $193,543.16, paying it into Court, or providing adequate security (such as a mortgage) to secure that sum.

Court Disposition

Release of documents to proceed only upon payment or security for outstanding legal costs; final orders deferred for parties to draft conditions.

Orders

  • ["SCL and MTP to provide BDL with applicants' documents held in relation to the primary proceedings within 7 days of either (a) payment in full of the outstanding $193,543.16; (b) payment of that amount into Court; or (c) provision of security (e.g. mortgage) sufficient to adequately secure payment of that amount."...