Doyles Construction Lawyers v D'Jamirze & anor [2004] NSWSC 507

Doyles Construction Lawyers v D'Jamirze & anor [2004] NSWSC 507

Declaratory relief was refused because the plaintiff did not establish a reasonable apprehension or appreciable risk that the settlement money would be unavailable to meet any assessed legal costs: the defendants' solicitors had offered to hold the disputed funds, the defendants had agreed to payment into Court, and the money had in fact been paid into Court. The bankruptcy of one defendant did not show that a declaration would strengthen the plaintiff's position or that relief was otherwise needed.

Jurisdiction
Australia
Judgment Date
11 June 2004
Procedural Posture
Summons by Solicitors Against Former Clients Concerning Legal Costs and a Claimed Lien Over Settlement Money / Hearing of Pars 2 and 7 of the Summons; Costs Assessment Proceedings Outstanding
Outcome
Orders sought in pars 2 and 7 of the summons dismissed; balance of summons stood over; plaintiff ordered to pay defendants' costs of the summons up to and including judgment date.
Legal Topics
["solicitor's Lien Over Fruits of Action" 'declaratory Relief' 'costs Assessment' 'money Paid Into Court' 'former Client Bankruptcy']
["solicitors' Costs" 'equity' 'civil Procedure' 'bankruptcy'] ["solicitor's Lien Over Fruits of Action" 'declaratory Relief' 'costs Assessment' 'money Paid Into Court' 'former Client Bankruptcy']

Case Brief

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Procedural Posture

Summons by Solicitors Against Former Clients Concerning Legal Costs and a Claimed Lien Over Settlement Money / Hearing of Pars 2 and 7 of the Summons; Costs Assessment Proceedings Outstanding

Legal Issues

  1. 1 ['Whether the plaintiff solicitors should receive a declaration of entitlement to a lien over settlement money paid into Court.' 'Whether there was an appreciable risk or probability that the defendants would deprive the plaintiff of recovery of proper costs from the settlement money.' "Whether the bankruptcy of Alick D'Jamirze provided an alternative basis for declaratory relief."]

Ratio Decidendi

Declaratory relief was refused because the plaintiff did not establish a reasonable apprehension or appreciable risk that the settlement money would be unavailable to meet any assessed legal costs: the defendants' solicitors had offered to hold the disputed funds, the defendants had agreed to payment into Court, and the money had in fact been paid into Court. The bankruptcy of one defendant did not show that a declaration would strengthen the plaintiff's position or that relief was otherwise needed.

Court Disposition

Orders sought in pars 2 and 7 of the summons dismissed; balance of summons stood over; plaintiff ordered to pay defendants' costs of the summons up to and including judgment date.

Orders

  • ["The plaintiff's claims for orders in terms of pars 2 and 7 of the summons are dismissed." "The balance of the summons is stood over to a date to be fixed pending the outcome of the assessment of the plaintiff's claim for legal costs against the defendants. Liberty to either party to restore the matter to the list...