Coshott v Barry [2016] FCAFC 173

Coshott v Barry [2016] FCAFC 173

The solicitor's lien was not extinguished by delivery up of the certificate of title nor destroyed by a claim for amounts later abandoned; Limitation Act 1969 (NSW) does not bar the lien so long as it is necessary to give effect to the lien, and debts supporting the lien are preserved; certificate of title was received during the retainer and in the course of professional engagement; no evidence exists of special agreement restricting the lien; thus, the lien is general and survives for unpaid costs.

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
["solicitor's Lien" 'limitation Act 1969 (nsw)' 'property Sale in Bankruptcy']
['bankruptcy and Insolvency' 'commercial Law'] ["solicitor's Lien" 'limitation Act 1969 (nsw)' 'property Sale in Bankruptcy']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether the solicitor's lien was extinguished by delivery up of certificate of title" 'Whether the lien was destroyed by a claim for the wrong amount' 'Whether the lien was barred by Limitation Act 1969 (NSW)' 'Whether certificate of title obtained pursuant to solicitor-client relationship' 'Whether lien general or specific' 'Whether lien otherwise extinguished']

Ratio Decidendi

The solicitor's lien was not extinguished by delivery up of the certificate of title nor destroyed by a claim for amounts later abandoned; Limitation Act 1969 (NSW) does not bar the lien so long as it is necessary to give effect to the lien, and debts supporting the lien are preserved; certificate of title was received during the retainer and in the course of professional engagement; no evidence exists of special agreement restricting the lien; thus, the lien is general and survives for unpaid costs.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' "The appellants pay the first and second respondent's costs of the appeal, as agreed or taxed."]