COUNSEL OF THE APPLICANTS SEEKS LIEN OVER THEIR APPLICANT’S COSTS ORDER JUDGMENT
Williamson & Williamson v Pay [2020] QSC 324 (27 October 2020)
This application involves the applicant’s counsel, Mr Laws, seeking lien over costs order judgment in favor of his clients.
Facts:
This is an application by Mr David Laws who was counsel acting on behalf of the first and second applicants in respect of the substantive application. On 26 September 2019, Justice Boddice ordered that the applicants’ costs be paid out of the estate to be assessed on the indemnity basis. Mr Laws has not been paid his fees in respect of the work done and invoiced in relation to the application.
The dispute between Mr Laws and Mr Thompson has escalated to the point that Mr Laws commenced Magistrates Court proceedings against Mr Thompson in respect of his fees and obtained default judgment.
Mr Laws seeks the orders set out in the draft order on the basis of an equitable interest in the costs order. Counsel on behalf of Mr Laws submits that a solicitor’s lien is not limited to the solicitor-client relationship but, on general principles, it would be applicable to a barrister. It is also submitted that it is not necessary to have a contractual relationship as a condition precedent to the existence of the lien. Reliance was also placed on the analogous position of a liquidator who has an equitable interest over property of the company.
Issue: Can the counsel of the applicants have a lien over the funds in the September judgment regarding the costs order to be paid by the estate?
Law:
- Uniform Civil Procedure Rules 1999, r 687
Analysis:
The applicant’s proposed orders seek to have the Court fix the costs in the amount of the short form assessment. The costs awarded under the costs order belong to the client i.e. Kara and Leah Williamson. Neither Mr Laws nor Mr Thompson were acting on behalf of Kara and Leah Williamson in respect of this application. It is not apparent on what basis Mr Laws has in effect standing to bring such an application. Rule 687 UCPR provides that the court may order a party to pay to another party an amount fixed by the court. The application to fix costs is made by the party – or on behalf of the party. Mr Laws’ application is on his own behalf: as counsel who previously acted on behalf of a party.
Even if the amount of Mr Laws’ invoices could be the subject of an equitable charge for the costs of work performed on the client’s behalf in obtaining the money, the costs claimed of $82,404.00 are unreasonable and the full amount would not be recoverable as costs of an application to “enforce” the equitable lien. Any amount in respect of the costs of the application would be limited to the reasonable costs of making such an application. The costs claimed are out of all proportion to the amount sought to be recovered and include items that relate to general debt recovery steps in respect of the costs dispute between Mr Laws and Mr Thompson.
The applicant has not made out an entitlement to the relief sought. Further, to the extent that the relief is discretionary, the applicant has not established that it is appropriate for the Court to exercise its discretion in the particular circumstances of this case.
Conclusion: The application is dismissed.
