G.A. Atkins & G.T. Connellan & J. Cooper & L. Gardner & S.C. Harris & M.J. Huckerby & M.J. Lee & P. McCarthy trading as Moray & Agnew (Newcastle) ABN 35 262 692 173) v Shade Systems Pty Limited (in Liquidation) (ACN 134 134 400 [2020] NSWSC 1186

Supreme Court New South Wales

Medium Neutral Citation: G.A. Atkins & G.T. Connellan & J. Cooper & L. Gardner & S.C. Harris & M.J. Huckerby & M.J. Lee & P. McCarthy trading as Moray & Agnew (Newcastle) ABN 35 262 692 173) v Shade Systems Pty Limited (in Liquidation) (ACN 134 134 400 [2020] NSWSC 1186 Hearing dates: 12, 20 August 2020 Decision date: 02 September 2020 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: 1. Declaration that the applicant has a lien over monies of Shade Systems Pty Ltd (in liquidation) ACN 134 134 400 which lien prevails against Probuild Constructions Pty Limited ACN 095 250 945 to the extent of $117,847.33 plus interest 2. Probuild Constructions Pty Limited ordered to pay this amount to the Applicant 3. Probuild Constructions Pty Limited's amended notice of motion filed 30 July 2020 dismissed. Catchwords: EQUITY – LEGAL PRACTITIONERS – CORPORATIONS – Corporations Act 2001 (Cth) (the Act) s 553C – Solicitor's "fruits of the action" lien over costs order made by the Court of Appeal in favour of their client against the losing party (the debtor) which solicitors argue covers their costs for acting in Court of Appeal and subsequent High Court proceedings – Where as a condition to the grant of special leave to appeal the debtor undertook not to disturb the Court of Appeal costs order – Where debtor claims that lien should not be recognised because without it it would have an equitable set-off for a claim it says it has against the client for liquidated damages or s 553C of the Act would have worked to effect one – Where debtor argues that the lien should not be recognised because the solicitors had other security which they did not realise – Where debtor argues that the High Court costs are not secured by the lien because those costs were not to defend a fund and were not immediately incidental to the costs incurred in the Court of Appeal proceedings – Where costs debtor argues that the solicitors have not established the reasonableness of their fees – HELD – Lien effective to cover Court of Appeal costs but not High Court costs – HELD – No equitable set-off would have been available – s 553C of the Act did not operate – Solicitors did not impair their lien – Their fees were reasonable – Lien operative with respect to Court of Appeal charges but not High Court Legislation Cited: Bankruptcy Act 1966 (Cth) Building and Construction Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Cases Cited: Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470 Cade Pty Ltd v Thomson Simmons (No 2) [2000] SASC 369 Carew Counsel Pty Ltd v French (2002) 4 VR 172 Color Point Pty Ltd v Markby's Communication Group Pty Ltd [1998] FCA 1516 Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 Firth v Centrelink (2002) 55 NSWLR 451 Gye v McIntyre (1991) 171 CLR 609 Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (Receivers and Managers Appointed) (2018) 53 WAR 325 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] NSWSC 540 Re Wedgwood: Ex parte Bank of New Zealand (1993) 116 ALR 153 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) [2016] NSWCA 382 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2018] NSWCA 34 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 Westpac Banking Corp v Kingsland (1991) 26 NSWLR 700 Texts Cited: P.V. Baker & P. St J. Langan (eds), Snell's Equity (29th edn, 1990, Sweet & Maxwell) Category: Principal judgment Parties: G.A. Atkins & G.T. Connellan & J. Cooper & L. Gardner & S.C. Harris & M.J. Huckerby & M.J. Lee & P. McCarthy trading as Moray & Agnew (Newcastle) - Applicant Shade Systems Pty Limited (In Liquidation) - Plaintiff Probuild Constructions (Aust) Pty Limited - Defendant Representation: Counsel: D Hume - Applicant S Robertson with A Smith - Defendant