Supreme Court New South Wales

• Medium Neutral Citation: Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222
• Hearing dates: 29 August 2014
• Decision date: 05 September 2014
• Jurisdiction: Civil
• Before: Hamill J

Decision

Relief granted (see orders)

• Catchwords: CIVIL LAW - solicitor's lien - release of file - solicitors costs - duty of disclosure - requirement that conditional costs agreement be signed by client - equitable charge - agreement to pay costs out of damages in other proceedings - declaration - injunction restraining client from disposing of future fund
• Legislation Cited: Legal Profession Act 2004 (NSW); Legal Profession Act 1987(NSW); Succession Act 2006 (NSW)
• Cases Cited: Browne v Dunn (1893) 6 R 67; Daley v Hughes [2014] NSWCA 268; Jackson v Richards [2005] NSWSC 630; Moloney v Coppola [2012] NSWSC 728; Moseley v Cressey's Company (1865) LR 1 Eq 405; Swaab v Sayed [2013] NSWSC 887
• Category: Principal judgment
• Parties: Brydens Lawyers Pty Limited t/as Brydens Compensation Lawyers (Plaintiff in Second Summons; Defendant in First Summons); Benjamin Ian Wilcox (Plaintiff in First Summons; Defendant in Second Summons)
• Representation: Counsel: H J Halligan (Wilcox); R W Tregenza (Brydens); Solicitors: Brydens Compensation Lawyers (Brydens); Carneys Lawyers (Wilcox)
• File Number(s): 2014/208821 (First Application); 2014/218638 (Second Application)
• Publication restriction: Nil

Judgment

1 I have before me two related sets of proceedings. The first is a summons commenced by Benjamin Ian Wilcox which seeks an order commanding his previous legal representatives (to whom I will refer to as Brydens) to release its file to Mr Wilcox's current solicitors. The second are proceedings by Brydens in which it seeks a number of orders designed to secure the payment of legal fees for professional services provided to Mr Wilcox.

2 Brydens' amended summons originally sought orders concerning the costs, and an unsigned costs agreement, relating to services provided in a personal injuries matter. It sought both declaratory relief (to the effect that there was a valid agreement between the parties) and an order for specific performance whereby Mr Wilcox would be required to sign a conditional costs agreement in a form provided to him in February 2010 but which was never executed or signed by him. This relief was sought in orders 1, 2 and 3 of Brydens' amended summons.

3 Brydens did not press for those orders and they were struck from the summons. The circumstances in which those orders were not pressed concerned the non-compliance with various provisions of the Legal Profession Act 2004 (NSW) concerning the proper execution of a conditional costs agreement (s 323(3)(c)(iii)) and a failure to disclose matters required to be disclosed by a legal practitioner to its client (s 309). The failure to comply with the relevant provisions of the Legal Profession Act 2004 (NSW) had been relied upon by Mr Wilcox and his legal representatives in defending that part of the amended summons. In the face of that defence, shortly after the hearing commenced, counsel for Brydens acknowledged that the agreement was "void".

4 Orders five and six of the amended summons seek declaratory and injunctive relief in relation to legal costs and disbursements (including counsel's fees) said to be outstanding for services provided by Brydens to Mr Wilcox in respect of an action for family provision under the Succession Act 2006 (NSW).

5 Initially, there seemed to be no dispute that the legal costs in relation to the family provisions matter were subject to an enforceable costs agreement. However, towards the end of the oral hearing, counsel for Mr Wilcox raised an argument that there had been some relevant non-disclosure in relation to the engagement of counsel. Initially, it was suggested that this may make the agreement unenforceable at least in part. The submission that the agreement may be unenforceable was withdrawn but counsel maintained a submission based around the non-disclosure of counsel's fees. The agreement, which is in evidence, plainly contemplates the engagement of counsel and there is no evidence before me that suggests that Mr Wilcox was unaware that both junior and senior counsel were engaged, provided advice, appeared at the hearing and acted in settlement negotiations.

6 However it seems that there is, or may be, an issue between the parties as to the amount of fees that Brydens can legitimately seek pursuant to the agreement. The precise content of that dispute is not a matter which directly impacts upon the decision that I have to make except insofar as counsel for Mr Wilcox asserts that the "debt" has not yet "crystallised". I will return to that submission.

7 Mr Wilcox changed solicitors in May of this year. By that stage the family provisions case had been before the Equity Division of this Court and had been subject to a settlement agreement. However, the personal injuries proceedings are not yet concluded. There was an assessment hearing before the Motor Accidents Authority and an assessment was made on 27 June 2013. Mr Wilcox was dissatisfied with the assessment and proceedings were commenced in the District Court on 2 August 2013. It was on 13 May 2014 that Mr Wilcox retained new solicitors (Carneys) to act in those proceedings. The case was listed for hearing on 11 August 2014 but on 9 July 2014 the hearing date was vacated, it seems at least in part, because Carneys did not have Brydens' file.

8 Part way through the hearing before me on 29 August 2014 the parties indicated that they were "99%" of the way toward reaching an agreement or compromise in relation to Mr Wilcox's summons seeking release of the legal file. After the luncheon adjournment I was told that an agreement had been reached as to the substance of the matter but that the parties could not agree as to who should pay the costs of Mr Wilcox' summons. While counsel for Brydens indicated that the only order they sought was dismissal of the summons, under force of argument it was agreed that the file would be returned upon either payment of a sum of $8,403 for disbursements for the personal injuries case or an undertaking by Mr Wilcox's current solicitors to pay that sum.

9 The parties were unable to reach any agreement in relation to Brydens' summons seeking declaratory and injunctive relief in relation to the costs, fees and disbursements that may be outstanding in respect of the family provision matter. In respect of that dispute the parties took staunch and diametrically opposed positions and appeared to be unprepared to enter any discussions as to the resolution of the question.

10 Counsel for Mr Wilcox submitted, amongst other things, that no order should be made because the debt had not "crystallised", that there was no fund to which any charge could be attached because the personal injuries litigation is not complete, that Brydens was acting precipitously in bringing the matter before this Court and that until a costs assessor had considered the matter the Court had no jurisdiction. This last submission was made implicitly and by reference to a decision in Daley v Hughes [2014] NSWCA 268.

11 In its affidavit evidence Brydens expresses the suspicion or concern that Mr Wilcox's motivation in changing solicitors was to avoid paying the costs of the family provision matter. This evidence was neither objected to nor subject to challenge by cross-examination. Counsel for Brydens submitted that the barristers who appeared were owed a large sum of money for professional services and that Brydens is responsible for that. He submitted that the evidence of Mr Wilcox gave rise to concerns that, unless the costs are secured in some way, the proceeds of the personal injury case may be disbursed leaving his client with little or no capacity to recover the debt.

12 Brydens rendered an itemised bill for the costs and disbursements relating to the family provision matter and that invoice is part of the evidence before me. The total amount outstanding, according to Brydens, is an amount of $280,255.13. Nothing in this judgment should be taken as indicating that such fees are reasonable or in accordance with the costs agreement. Equally, nothing that I say should be interpreted as suggesting that the fees are not reasonable and not in accordance with the agreement.

13 Further, this judgment should not be taken as a determination that any costs are due and payable or as a conclusive finding that there is a debt. If there is dispute as to that matter, it will be determined on its merits by another court or tribunal. However, there is no dispute that Brydens has, at least, a chose in action arising from the costs agreement, the services it has rendered and the disbursements for which it has paid.

14 The question is whether or not there is an enforceable agreement whereby the amount of the legal costs, or an amount of costs properly assessed pursuant to the Legal Profession Act, is attached or charged to any prospective award of damages or settlement arising from the successful conclusion or successful outcome of the personal injuries claim.

15 I have received into evidence a number of affidavits on behalf of both parties. Much of that material is irrelevant to the matter upon which I am left to make a decision and is concerned with the dispute between the parties as to the outstanding costs for the work done in relation to the personal injuries case and the related question of whether Brydens could legitimately enforce a lien over Mr Wilcox's file.

16 The evidence in relation to the remaining issue is in relatively short compass.

17 There is no serious issue that a costs agreement was signed by the parties in relation to the professional services concerning the family provision case. The written agreement was annexed to an affidavit of the solicitor Amanda Agius. That agreement indicated that costs would be payable upon the "successful outcome of the work." That concept is defined in clause 3 which is in the following terms:

"The successful outcome of the work is:

when you receive any financial outcome that is in your favour, whether by way of judgment, verdict, settlement or other arrangement."

18 On 10 February 2014 the family provision matter was listed for hearing. Following negotiations a settlement was reached. That document was before me as exhibit A and is in the following terms:

"A. Patricia Wilcox ("Pat") is the executor of the estate of the late Ian Sanderson ("Deceased").

B. The Deceased owned directly or indirectly a number of parcels of land in the Walgett-Carinda area owned ("Deceased's Country").

C. Benjamin-Wilcox ("Ben") has a made a claim against the Deceased's estate is the Supreme Court 2010/426690 ("Proceedings")

D. Pat owns directly or indirectly a number of parcels of land is the Walgett-Carinda area ("Pat's Country").

E. Pat and Ben wish to resolve the Proceedings, in part because

(a) Pat and Ben are concerned that the Deceased's Country and Pat's Country are in drought and they both want to ensure the viability of the Deceased's Country and Pat's Country;

(b) Pat and Ben want to preserve and foster their personal relationship.

F. Pat and Ben agree to resolve the Proceedings on the terms set out herein.

Operative Provisions

1. Pat and Ben agree Consent Orders in the form set out in Schedule 1 to be made in the Proceedings.

2. Pat will prepare a draft will ("Draft Will") for Ben's comments, which will provide as a minimum a parcel or parcels of land or a significant legacy to Ben ("Ben's Bequest").

3. Ben and Pat will engage in reasonable negotiations in good faith relating to Ben's Bequest.

4. After Ben and Pat have engaged in reasonable negotiations, Pat will execute the Draft Will as her will ("Pat's Will). Pat may change Pat's Will and may increase Ben's Bequest provided that Pat will not change Pat's Will to reduce Ben's Bequest except with Ben's prior consent.

5. If Ben agrees to Ben's Bequest

Ben will release Pat's estate from any claim that he may have against Pat's estate pursuant to Chapter 3 of the Succession Act 2006 (NSW).

6. If Ben does not agree to Ben's Bequest in the Draft Will

a. Pat acknowledges that Ben may bring a family provision claim against Pat's estate pursuant to Chapter 3 of the Succession Act or any successor legislation;

b. Pat agrees that Pat's estate will not make any claim, argument or submission that the Proceedings should be taken into account, or be considered disentitling conduct, in Ben's family provision claim.

7. Trevor Harland will release Pat's estate from any claim that lie may have against Pat's estate pursuant to Chapter 3 of the Succession Act 2006 (NSW), propriety estoppel or promissory estoppel to the extent it jeopardises Ben's Bequest or Ben's family provision claim.

8. Trevor Harland will release Pat from any claim that he may have against Pat pursuant to the Family Law Act 1975 (Cth) to the extent it jeopardises Ben's Bequest or Ben's family provision claim.

9. Pat is entitled to transfer mortgage or encumber the Deceased's Country and Pat's Country provided that it does, not jeopardise Ben's Bequest or Ben's family provision claim.

10. Struck out.

11. The terms of this Heads of Agreement are confidential, except to Ben's legal advisers and to the extent he is required to disclose it in his motor vehicle compensation claim."

19 I accept that the entering of those "heads of agreement" constituted the "successful outcome of the work" in accordance with the costs agreement. Accordingly, on 10 February 2014 any costs and disbursements that could properly be charged under the costs agreement became due and payable provided that there was compliance with relevant provisions of the Legal Profession Act. Of course, that included the requirement that either party could seek that the costs be assessed. As I understand it, and as counsel informed me, there has not at this stage been any application by either party to have the costs assessed. However an itemised account has now been provided by Brydens and, if no application is made for an assessment of the costs, it would be entitled to sue on the itemised bill.

20 I do not accept the submission on behalf of Mr Wilcox that the debt has not yet "crystallised". I will deal with the reliance on Daley v Hughes (supra) later in this judgment. I accept Brydens' submission that the debt "crystallised" on 10 February 2014 when the settlement was reached.

21 There is a factual dispute between the parties as to what happened after the settlement was reached on 10 February 2014. Resolution of that dispute will go a long way to determining the appropriate outcome of Brydens' application for declaratory and injunctive relief:

22 Ms Agius says in her affidavit:

"14. During the course of the discussions the subject of the costs payable by the defendant in connection with the action was raised with him. Same was raised by both Mr Glissan of Queen's Counsel and Ms Catanzariti of Counsel.

15. It was discussed with the defendant in words to the following effect:

'You have to pay the costs of these proceedings but given that you have the motor accident claim you can pay these fees from that claim.'

The defendant said words to the effect:

'I would be happy with that.'"

23 Mr Willcox gave the following evidence in his affidavit:

"19. At paragraph 15 Ms Agius reproduces a conversation said to have taken place in the company of senior and junior counsel. I agree that Ms Agius said to me as follows: -

'You have to pay the costs of these proceedings but given that you have the motor accidents claim you can pay these from that claim.'

20. My response was:

'I would be happy with that provided I know how much it is and that you complete the claim that I become entitled to the property Barwon Vale, from my grandfathers estate.'

21. Ms Catanzariti responded by saying: -

'Yes that is what we are in the process of doing'"

24 Mr Wilcox was required for cross-examination and it was put to him that his recollection of that conversation was not correct. In particular it was put to him that there was no reference to the property Barwon Vale. In support of that proposition Brydens relies on the fact that the heads of agreement makes reference to unidentified parcel (or parcels) of land but makes no reference to the property Barwon Vale. On the other hand, Mr Wilcox relies on a document, which became Exhibit B. Exhibit B is a draft will which does make reference to the property Barwon Vale. Precisely when that document was received by Mr Wilcox was not clear and, in spite of Mr Wilcox making reference to an email by which it was received, counsel did not seek to tender a copy of that email or otherwise attempt to prove precisely when the draft will came into either Mr Wilcox's hands or the hands of Brydens.

25 Ms Agius made a further affidavit in relation to the subject of the conversation and it included the following:

"2. I refer in particular to paragraphs 19, 20 and 21 of [Mr Wilcox's] affidavit.

3. [Mr Wilcox] did not say what he has deposed to in paragraph 20 of his affidavit.

4. Ms Catanzariti of counsel did not say to [Mr Wilcox] what [Mr Wilcox] has deposed to in paragraph 21 of his affidavit."

5. [Mr Wilcox] seems to imply that the fees payable in connection with the family provisions proceedings were payable on condition that his claim was completed and that he became entitled to a property from the estate being the subject of the proceedings. That was not the case.

6. As deposed to in my affidavit of 1 August 2014 the Family Provision Act proceedings were resolved in accordance with the instructions of [Mr Wilcox] and with agreement that the costs incurred in connection with the family provision act proceedings be paid from the proceeds of [Mr Wilcox's] motor accidents proceedings."

26 Brydens also relies on an affidavit of Therese Catanzariti who was the junior barrister present at the time of the disputed conversation. She swears:

"3.I have read the affidavit of [Mr Wilcox] sworn 14 August 2014.

4.I do not agree with the contents of paragraphs 20 and 21 of [Mr Wilcox's] affidavit.

5.My discussions with [Mr Wilcox] and those who instructed me at the hearing of the defendant's family provision proceedings are privileged and confidential and I am not at liberty to disclose the content of the discussions unless specifically instructed to do so by [Mr Wilcox]."

27 Counsel for Mr Wilcox said in submissions that Miss Agius was "not here to be cross-examined". In fact, Mr Wilcox and those advising him did not seek to cross-examine either Miss Agius or Ms Catanzariti on the contents of the affidavits and, in particular, in respect of their versions of the critical conversation with Mr Wilcox which followed upon the settlement of the family provision proceedings.

28 Counsel for Mr Wilcox submitted that requiring them for cross-examination would have been a "time wasting exercise" because the Court could fairly infer that all that would have occurred was that counsel would have put Mr Wilcox's version to them and they would have adhered to their account of the conversation. I do not accept this. It was possible to engage in a more nuanced cross-examination than simply complying with the rule in Browne v Dunn (1893) 6 R 67.

29 It is difficult to reject the unchallenged evidence of Ms Agius and Ms Catanzariti and unfair to do so when they have not had the opportunity to answer the suggestion that they have provided either inaccurate or incomplete versions of the conversation. The cross-examination of Mr Wilcox does not allow me to conclude that he was not doing his best to give evidence as to what was said. However, his version of events is substantially different to the versions provided by the witnesses relied upon by Brydens. Importantly, the reference in his version of the conversation relating to the property Barwon Vale is difficult to reconcile with the fact that the property is not mentioned in the heads of agreement. The draft will could not have come into possession of either Mr Wilcox or Brydens until after the heads of agreement document was signed. Precisely when it came into the hands of either party is impossible to determine on the evidence before me. But it must have been after the settlement and after the critical conversation.

30 I accept the version of the conversation deposed to by Ms Agius. That is, I accept that Mr Wilcox agreed in the aftermath of the settlement of the family provision proceedings that the legal costs payable to Brydens for services provided in relation to those proceedings would be paid from the proceeds of the motor accident claim. Mr Wilcox does not dispute the critical part of the conversation ("You have to pay the costs of these proceedings but given that you have the motor accidents claim you can pay these from that claim") but contends that he placed a condition upon it. The condition specifically concerned his successful acquisition of the Barwon Vale property. That is unlikely given that the Barwon Vale property did not form part of the heads of agreement. I do not accept that such a condition was placed upon the agreement to pay the costs out of the damages for the personal injuries claim.

31 Both parties placed some reliance on a file note dated 10 February 2014 annexed to Ms Agius' affidavit. Brydens relies on the fact that the file note says (in respect of the settlement negotiation) "no costs - as © can pay from MVA claim" and (in respect of the attachment of its costs to the personal injury claim) "costs - E92K plus Glissan + Catanzanti -> pay from MVA -> © liable -> no costs from estate of $$". Counsel for Mr Wilcox noted the disparity between the estimate of $92,000 and the itemised bill and contends that this supports the proposition that the arrangement was too vague and uncertain to give rise to an enforceable equitable charge. However, counsel for Brydens notes that there is no real disparity because the difference in the two figures is explained by reference to the fees of the barristers. Properly analysed, Brydens says that the $92,000 was an overestimate of the solicitors' costs.

32 On the whole, the file note supports the existence of an agreement whereby the legal costs and disbursements of the family provision litigation would be paid out of the proceeds of the personal injury claim. There is nothing in the note that suggests that this was conditional upon Mr Wilcox acquiring the Barwon property.

33 Counsel for Mr Wilcox asserted that, if this conversation occurred, it converted an unconditional cost agreement into a conditional costs agreement under the Legal Profession Act. Thus, as I understand it, there were statutory requirements that it be reduced to writing, subject to various forms of disclosure and had to be signed. Apart from asserting that to be the case counsel provided no submissions in support of the submission. When asked if he could provide any authority or legislative basis for the assertion, counsel referred to s 323 of the Legal Profession Act. That section reads as follows:

"323 Conditional costs agreements

(1) A costs agreement may provide that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate.

(2) A conditional costs agreement may relate to any matter, except a matter that involves criminal proceedings or proceedings under the Family Law Act 1975 of the Commonwealth.

(3) A conditional costs agreement:

(a) must set out the circumstances that constitute the successful outcome of the matter to which it relates, and

(b) may provide for disbursements to be paid irrespective of the outcome of the matter, and

(c) must be:

(i) in writing, and

(ii) in clear plain language, and

(iii) signed by the client, and

(d) must contain a statement that the client has been informed of the client's right to seek independent legal advice before entering into the agreement, and

(e) must contain a cooling-off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement.

(4) Subsection (3) (c) (iii), (d) and (e) do not apply to a conditional costs agreement made under section 322 (1) (c) (Costs agreements between law practices).

(4A) Subsection (3) (c) (iii), (d) and (e) do not apply to a conditional costs agreement if disclosure under:

(a) section 309 (Disclosure of costs to clients), or

(b) section 310 (1) (Disclosure if another law practice is to be retained),

in relation to the agreement was not or would not be required in the circumstances referred to in section 312 (1) (c) or (d) (Exceptions to requirement for disclosure).

(4B) Subsection (3) (c) (iii), (d) and (e) do not apply to a conditional costs agreement made with a sophisticated client.

(5) If a client terminates an agreement within the period referred to in subsection (3) (e), the law practice:

(a) may recover only those legal costs in respect of legal services performed for the client before that termination that were performed on the instructions of the client and with the client's knowledge that the legal services would be performed during that period, and

(b) without affecting the generality of paragraph (a), may not recover the uplift fee (if any)."

34 It is clear from sub-section (1) that the section does not relate to the circumstances prevailing here. Payment of the costs did not turn on the successful outcome of the proceeding "to which those costs related". There had been such a condition in the costs agreement but it contemplated that payment was dependant upon the successful conclusion of the family provisions case. That conclusion was reached with settlement of the case on 10 February 2014. The oral agreement related to the successful outcome of different proceedings.

35 In deference to counsel I should also refer to the submission based around the decision in Daley v Hughes (supra). Counsel for Mr Wilcox sought to assert that the Court of Appeal's decision in that case supported his submission that Brydens was acting prematurely because a costs assessment is yet to be completed. However, Daley v Hughes concerned a different circumstance. In that case, a costs assessor had provided "draft reasons" in relation to a costs assessment in relation to disputed costs under a motor vehicle claim. The respondent (in the Court of Appeal) had successfully appealed to a single Judge of the Supreme Court under the existing provisions (s 208L of the Legal Profession Act 1987). It was held that the draft reasons were not a "decision" for the purpose of the appeal provisions; they were no more than an "expression of intention" as to how the assessor proposed to proceed: per Meagher JA at [3], [9]; per Tobias AJA at [77]-[82].

36 That decision has little, if any, relevance to the circumstances of the present case. While there is a right in either party to seek a costs assessment (see ss 350 and 352 Legal Profession Act) neither has, at this stage, sought to exercise that right. Brydens relies on the fact that there was a costs agreement and that the condition attaching to that agreement (successful completion of the family provision case) has been satisfied. Having now provided an itemised account, it is entitled to recover its fees: ss 331-332A. It then relies on the oral agreement it alleges whereby those fees will be paid out of any settlement or award, which follows from the personal injury claim.

37 Counsel for Brydens took me to the decision of White J in Jackson v Richards [2005] NSWSC 630. White J provided the following explanation for when an equitable charge of the kind for which Brydens contends will arise:

"18 An agreement between a debtor and his creditor that the debt owing shall be paid out of a specific fund coming to the debtor will create a valid equitable charge upon the fund and operate as an equitable assignment of it. (Rodick v Gandell (1852) 1 De GM & G 763 at 777, 778; 42 ER 749 at 754). However, for this principle to apply, there must be a specific fund from which the debt owing is to be paid. In Swiss Bank Corporation v Lloyds Bank Limited [1982] AC 584, Buckley LJ said (at 595):

'If the debtor undertakes to segregate a particular fund or asset and to pay the debt out of that fund or asset, the inference may be drawn, in the absence of any contra indication, that the parties' intention is that the creditor should have such a proprietary interest in the segregated fund or asset as will enable him to realise out of it the amount owed to him by the debtor.'

19. For such a charge to be created by an agreement to pay a debt out of a fund to come to the debtor, the parties must have agreed that the debtor would keep the fund separate from his other assets. (Moseley v Cressey's Co (1865) LR 1 Eq 405 at 409).

20. There was no express agreement between the parties that if the Drummoyne property were sold, the defendant would keep his share of the proceeds of sale in a separate account which would be applied to meet his debt for costs. If the parties intended or assumed that the defendant could add his share of the proceeds of sale to his other assets, by, for example, crediting them to his existing bank account, or that he could use them to reduce any overdraft to the bank, or to discharge other debts, any such intention or assumption would be inconsistent with the plaintiffs having a charge over the proceeds. Very slight differences of language could produce different legal outcomes. If the defendant said, "I will pay your costs out of the proceeds of sale", that might imply that the proceeds of sale would be kept separate and the debt would be paid from the separate fund. On the other hand, if the defendant said "I will pay your costs when I receive the proceeds of sale", no such implication could be drawn."

38 This decision was referred to by Nicholas J in Moloney v Coppola [2012] NSWSC 728 although that case involved a clear written instrument and the debt (legal fees) was attached to particular real property.

39 The conversation here ("you can pay these fees from [the motor accidents] claim") is in the second category to which White J referred in paragraph of [20] of Jackson v Richards. It implied that the proceeds of the personal injury claim will be kept separate and that the debt will be paid from that separate fund. The agreement to attach the debt to a future fund was based on proper consideration, namely that Brydens would not call upon the debt until the completion of the personal injury case.

40 Declaratory relief was granted by Kunc J in Swaab v Sayed [2013] NSWSC 887 although his Honour declined to nominate an amount of the legal costs in circumstances where those costs may have to be assessed and that assessment may have resulted in a different sum.

41 Adopting the language used by counsel at the hearing, I am satisfied that on 10 February 2014 a debt (for legal costs) "crystalised" upon the successful conclusion of settlement negotiations in the family provision matter and the entry into the heads of agreement (Exhibit A). I am not in a position to determine the quantum of that debt and it would be inappropriate to attempt to do so when Mr Wilcox has a right to have the itemized invoice assessed under s 350 of Legal Profession Act 2004 (NSW).

42 I am satisfied that the conversation between Mr Wilcox and Ms Agius on 10 February 2014 created an equitable charge over part of the proceeds of Mr Wilcox's personal injury claim.

43 In the circumstances, I am satisfied that it is appropriate to exercise my discretion to make a declaration to that effect. There is utility in making such a declaration in circumstances where new lawyers have been engaged and a declaration will clearly assist Brydens in their dealings with those lawyers as to the disposition of the funds when, and if, they are received by Mr Wilcox's solicitors.

44 I am also satisfied that the injunctive relief should also be granted. I note the concerns expressed in the affidavit of Lee Hagiipantellis:

"I believe the Plaintiff's intention in changing solicitors is to avoid the payment of the proper costs to this firm in the motor vehicle proceedings and to entirely avoid payment of the costs in the Family Provision Act proceedings. I believe that he will instruct his solicitors not to pay the costs of either from his verdict."

45 In the absence of any challenge to that evidence and the absence of any evidence to the contrary from Mr Wilcox it is appropriate to make an order in the terms sought by Brydens.

46 As to the question of the costs, I note the following:

(a) The parties agreed that I should approach the question of costs in a global way. The two summonses are related and were heard together. Neither party submitted that I should give separate consideration to the questions of costs in relation to the two summonses.

(b) In respect of Mr Wilcox's summons, he has (ultimately by agreement) achieved the release of the file. However, that is on conditions not dissimilar to an arrangement suggested by Brydens in correspondence dated 17 July 2014. Counsel for Brydens pointed to that correspondence in support of a conclusion that Brydens should be favored by an order for costs. However, he conceded that the offer was "effectively withdrawn or repudiated, and then everyone went to their corners" and that "there's a little bit of fault on both sides". Indeed perusal of the correspondence shows that the negotiation broke down over the filing fee of the summons.

(c) Counsel for Mr Wilcox tells me, and I accept from him, that the District Court (personal injuries) proceedings were vacated on condition that Supreme Court proceedings for return of the file be instituted within seven days.

(d) In respect of Brydens' summons, it has succeeded in obtaining the relief it sought in respect of the equitable charge protecting the costs of the family provision proceedings. However, it only abandoned its application for declaratory relief and "specific performance" in relation to the legal costs of the personal injury claim after the hearing had commenced and after the opening of counsel for Mr Wilcox. It did so in circumstances where it conceded that the agreement upon which it had proceeded was void as a result of (what I consider to be) substantial non-compliance with the provisions of the Legal Profession Act and relevant regulations under the Motor Accidents Compensation Act.

47 In my view, the parties should bear their own costs. Each has had some success and each has shown a certain intransigence or unwillingness to compromise in the course of the litigation.

48 Accordingly, I make the following orders:

In respect of proceedings 2014/208821:

(1) Upon payment of the sum of $8,403 or an undertaking by the plaintiff's solicitor to pay that sum, the defendant is to release its file relating to the plaintiff to the plaintiff's solicitors.

(2) The parties are to pay their own costs.

In respect of proceedings 2014/218638:

(1) The orders sought in paragraphs 1, 2 and 3 of the amended summons are struck out.

(2) I make a declaration that there exists between the plaintiff and the defendant an agreement whereby the defendant will pay the costs and disbursements owed by him to the plaintiff in respect to the family provision (Succession Act) proceedings number 2010/426690 from his verdict or settlement monies arising from his claim for compensation arising from a motor vehicle accident on 2 January 2009.

(3) I make an order restraining the defendant from in any way disposing of or encumbering the verdict or settlement monies from the said claim to the extent of the costs and disbursements owed by him to the plaintiff in respect to family provision (Succession Act) proceedings number 2010/426690 being $280,255 or such lesser amount as may be assessed.

(4) The parties are to pay their own costs.

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Decision last updated: 08 September 2014