Samaha & Anor v El-Hawache [2005] NSWSC 967

New South Wales Supreme Court

CITATION : Samaha & Anor v El-Hawache [2005] NSWSC 967

HEARING DATE(S) : 15 September 2005

JUDGMENT DATE : 15 September 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Defendant ordered to deliver Plaintiffs' file to new solicitor.

CATCHWORDS : SOLICITOR'S LIEN - COSTS - Whether previous solicitor should be ordered to render bill of costs and surrender file on condition.

LEGISLATION CITED : Legal Profession Act 1987 (NSW) - s.209C

Brian Samaha - First Plaintiff PARTIES : Pauline Samaha - Second Plaintiff Sayed El-Hawache - Defendant

FILE NUMBER(S) : SC 4878/05

A. Canceri - Plaintiff COUNSEL : R. Johnson (Sol) - Defendant

James Lahood & Assoc - Plaintiff SOLICITORS : Sid Hawach - Defendant

LOWER COURT JURISDICTION :

Ex tempore

1 The Plaintiffs were formerly the clients of the Defendant, who is a solicitor. The Defendant was acting for them in some litigious matter. 2 The Plaintiffs decided to withdraw their instructions from the Defendant and to instruct another solicitor. The new solicitor attempted to obtain from the Defendant the Plaintiffs' files relating to the matter. There were several attempts by the new solicitor to contact the Defendant in an endeavour to obtain the files and to discuss the matter. Those endeavours to communicate with the Defendant were unsuccessful because the Defendant did not return calls or reply to correspondence. 3 A response from the Defendant was elicited when, in accordance with previous advice to this effect, the Plaintiffs commenced proceedings in this Court under s.209C of the Legal Profession Act 1987 (NSW) for orders under that section. The Defendant resists those orders on grounds to which I will come shortly. 4 The Plaintiffs, by their new solicitor, have offered a means of satisfying the Defendant as to the payment of his proper costs. Firstly, they require a bill of costs from the Defendant. The Defendant has provided a memorandum of fees which clearly does not conform with the requirements for a bill of costs set out in Regulation 45 under the Legal Profession Act. That memorandum of fees was provided only after several unsuccessful attempts had been made by the new solicitor to communicate with the Defendant and to obtain the file. 5 The new solicitor for the Plaintiffs has proffered an undertaking to the Defendant that he will preserve the Defendant's lien for costs over the Plaintiffs' file and will return the file on completion of the proceedings for which it is required. The Defendant says that undertaking is not satisfactory. 6 The new solicitor has offered that his clients will enter into a tripartite deed which is propounded by the Law Society to deal with disputes of this very character. The terms of that deed provide, inter alia, in Clause 7 that the new solicitor is to pay within 21 days of receipt and availability of clear funds of the client the costs of the former solicitor in certain circumstances where it is demonstrated that the solicitor is entitled to receive that amount of costs.