Leamey v Heath & Anor [2001] NSWSC 1095

Leamey v Heath & Anor [2001] NSWSC 1095

When a specified sum for costs is ordered in the Local Court arising out of criminal proceedings, no further assessment of those costs is possible under the Legal Profession Act 1987 in the Supreme Court; the solicitor who generated the fund by his efforts is entitled to a lien over the fund for his costs and disbursements, and is entitled to have the fund disbursed accordingly.

Jurisdiction
Australia
Judgment Date
22 November 2001
Procedural Posture
Equity Division Matter—injunction and Declaration / Final Judgment
Outcome
Orders made as sought: injunction granted, lien declared, and payment out ordered to plaintiff; no order as to costs.
Legal Topics
['costs—assessment and Disbursement' "solicitor's Lien—property Recovered Through Solicitor's Efforts" 'assessment of Costs Under Legal Profession Act' 'costs in Criminal Proceedings']
['procedure' 'professions and Trades' 'mortgages' 'equity'] ['costs—assessment and Disbursement' "solicitor's Lien—property Recovered Through Solicitor's Efforts" 'assessment of Costs Under Legal Profession Act' 'costs in Criminal Proceedings']

Case Brief

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Procedural Posture

Equity Division Matter—injunction and Declaration / Final Judgment

Legal Issues

  1. 1 ['Whether a solicitor is entitled to a lien over funds paid into court for costs in criminal proceedings' 'Whether a further Supreme Court costs assessment is permissible under the Legal Profession Act 1987 where a specific sum has been ordered in the Local Court' 'How the paid funds are to be disbursed among solicitor, counsel and witnesses']

Ratio Decidendi

When a specified sum for costs is ordered in the Local Court arising out of criminal proceedings, no further assessment of those costs is possible under the Legal Profession Act 1987 in the Supreme Court; the solicitor who generated the fund by his efforts is entitled to a lien over the fund for his costs and disbursements, and is entitled to have the fund disbursed accordingly.

Court Disposition

Orders made as sought: injunction granted, lien declared, and payment out ordered to plaintiff; no order as to costs.

Orders

  • ['First defendant not to disburse $32,757 except in accordance with court orders.' 'Plaintiff entitled to a lien over said funds.' 'First defendant to pay said funds to plaintiff for disbursement per regime ordered by Magistrate.' 'Summons stood over to Monday 4 March at 9.30 before Registrar.']