Patterson v Cohen [2005] NSWSC 635

New South Wales Supreme Court

CITATION : Patterson v Cohen [2005] NSWSC 635

HEARING DATE(S) : 27 & 28 June 2005

JUDGMENT DATE : 28 June 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Plaintiff entitled to "fruits of litigation" lien over fund in Court.

CATCHWORDS : PROFESSIONS AND TRADES [169] - Lawyers - Liens - Possessory lien - When lien arises - Costs not yet assessed - Principles applicable.

Industrial Relations Act 1996 s 106 LEGISLATION CITED : Legal Profession Act 1987

Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 Abdul-Karim v The Attorney General's Department [1999] NSWSC 79 Twigg v Kung (2002) 55 NSWLR 485 CASES CITED : Worrell v Power & Power (1993) 46 FCR 214 In the Estate of Fuld Decd (No 4) [1968] P 727 Kelso v McCulloch NSWSC 24 October 1994 unreported Roam Australia Pty Ltd v Telstra Corporation Ltd FCA 22 September 1997 unreported

Darcy Reginald Francis Patterson t/as H M Symonds & Britten (P) Yehuda Leon Cohen (D1) PARTIES : Sir Moses Montefiore Jewish Home (D2) Minter Ellison Lawyers (D3)

FILE NUMBER(S) : SC 2656/05

T J Hancock (P) COUNSEL : In person (D1) G Walker, Solicitor (D2 & 3)

H M Symonds & Britten (P) SOLICITORS : In person (D1) Minter Ellison (D2 & 3)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 28 JUNE 2005

2656/05 DARCY REGINALD FRANCIS PATTERSON t/as H M SYMONDS & BRITTEN v YEHUDA LEON COHEN & ORS JUDGMENT 1 HIS HONOUR: These proceedings concern a sum of money paid into Court. The plaintiff, upon a summons and by notice of motion, claims in relation to that sum of money relief by way of a declaration that it is entitled to a lien in respect of costs rendered by the plaintiff as a solicitor for work done for the first defendant. The first defendant by notice of motion claims the payment out to him of those moneys or part of them for use by him to conduct certain legal proceedings. 2 The law in relation to what is commonly called "fruits of litigation" liens has been the subject of considerable discussion in the courts of recent years. The locus classicus in this State is in the judgment of Jordan CJ in Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100. A compendious account of the recent law was given by Lehane J in Roam Australia Pty Ltd v Telstra Corporation Ltd FCA 22 September 1997 unreported. There his Honour said: " The solicitors' claimed equitable interest