Braich Estate

Braich Estate

The petition was dismissed: a solicitor cannot obtain a charge or equitable lien over estate property in favor of unpaid legal bills without (1) a passing of accounts to determine whether the costs were properly incurred by the trustee and attributable to the estate and (2) a judgment or Registrar's certificate in...

Source-derived case information.

Citation
2017 BCSC 1140
Parties
Petitioner: James Greer Carphin, Q.C.; Respondent (deceased): Herman Singh Braich Jr.; Respondent (trustee): Surjeet Kaur Braich; Respondent: Erwin Singh Braich; Respondent (administrator): H.S. Kenny Braich; Respondent (administrator): Herbishan Singh Braich; Interested Party: Canada Revenue Agency
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
5 July 2017
Procedural Posture
Petition / Reasons for Judgment (dismissal)
Outcome
Petition dismissed; CPL cancelled
Legal Topics
Executor Liability, Solicitor's Fees, Passing of Accounts, Certificate of Pending Litigation (cpl), Equitable Lien/charge, Subrogation, Procedural Appropriateness of Petition Vs Action
Source Language
english
Estate Law Trusts and Estates Property Law Civil Procedure Legal Profession Regulation Land Title Law Executor Liability Solicitor's Fees +5 more

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Parties

James Greer Carphin, Q.C.

Petitioner

Herman Singh Braich Jr.

Respondent (deceased)

Surjeet Kaur Braich

Respondent (trustee)

Erwin Singh Braich

Respondent

H.S. Kenny Braich

Respondent (administrator)

Herbishan Singh Braich

Respondent (administrator)

Canada Revenue Agency

Interested Party

Procedural Posture

Petition / Reasons for Judgment (dismissal)

Legal Issues

  1. 1 Whether a solicitor can enforce payment by proceeding directly against estate property without a passing of accounts and without a judgment or Registrar's certificate
  2. 2 Whether petitioner is entitled to a charge or equitable lien on estate property for unpaid legal bills
  3. 3 Whether the registered certificate of pending litigation (CPL) against the Property is valid

Ratio Decidendi

The petition was dismissed: a solicitor cannot obtain a charge or equitable lien over estate property in favor of unpaid legal bills without (1) a passing of accounts to determine whether the costs were properly incurred by the trustee and attributable to the estate and (2) a judgment or Registrar's certificate in favour of counsel (or appropriate Legal Profession Act review); consequently the CPL was not properly registered and must be cancelled.

Court Disposition

Petition dismissed; CPL cancelled

Orders

  • Relief sought by petitioner dismissed
  • Certificate of pending litigation registered by petitioner against the Property cancelled (Land Title Act s.256(1))