Supreme Court New South Wales

• Medium Neutral Citation: Rasma Gulbis v Mikelis Strikis [2012] NSWSC 807
• Hearing dates: 13 July 2012
• Decision date: 13 July 2012
• Jurisdiction: Equity Division
• Before: Slattery J

Decision

Defendant/solicitor ordered to transfer Certificate of Title to plaintiff/widow pursuant to Legal Profession Act, s 728 - defendant ordered to pay indemnity costs of proceedings.

• Catchwords: LEGAL PRACTITONERS - lien - defendant/solicitor appointed executor of estate of deceased - plaintiff/widow of deceased and registered proprietor of residential property with deceased as joint tenants instructs solicitor to arrange transfer of deceased's interest in property to her - solicitor performs legal work but claims work performed as executor of the estate, not as solicitor for the widow - solicitor does not provide fee disclosure or issue a bill of costs to widow in conformity with Legal Profession Act 2004, Pt 3.2 in respect legal work performed in relation to Certificate of Title - whether solicitor retained by the widow or whether solicitor acting as executor - solicitor claims lien over Certificate of Title issued by Land Titles Office in widow's name - whether order should be made under Legal Profession Act 2004, s 728 for the delivery up of the Certificate of Title to the widow - whether solicitor's lien.
• Legislation Cited: Legal Profession Act 2004 (NSW), s 178; Probate and Administration Act 1898 (NSW), s 86; Real Property Act 1900 (NSW)
• Cases Cited: Automobile & General Finance Co Ltd v Cowley - Cooper (1948) 49 SR (NSW) 31; Baillieu Knight Frank (NSW) v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359; Blazai Pty Ltd v Maley t/as MacLarens Solcitors & Attorneys [2012] NSWSC 489; Degmam Pty Ltd (in liq) v Wright (1983) 2 NSWLR 354; Gigi Entertainment Pty Ltd v Macree [2011] NSWSC 856; Harrison v Schipp [2001] NSWCA 13; Hypec Electronics Pty Ltd (in liq) v Mead (2004) 61 NSWLR 169; NMFM Property Pty Ltd v Citibank (No. 11) (2001) 109 FCR 77; White v Bini [2003] FCA 669
• Category: Principal judgment
• Parties: Plaintiff/cross-defendant:- Rasma Gulbis; Defendant/ cross-claimant:- in person
• Representation: Counsel: Plaintiff/cross-defendant:- Ms R. Kako; Solicitors: Plaintiff/cross-defendant:- Michael John O'Neill, J. P. O'Neill Solicitors; Defendant/cross-claimant:- Mikelis Strikis
• File Number(s): 2011/399785
• Publication restriction: No

EX TEMPORE JUDgment

1 Rasma Gulbis is a pensioner. Her husband, Vilis Gulbis, died on 19 July 2009. At the time of his death they were joint tenants of a residential property in Dutton Street, Bankstown. The defendant, Mikelis Strikis, a solicitor of this Court, was appointed executor of the deceased's will.

2 In the dispute before the Court Mrs Gulbis seeks from Mr Strikis the Certificate of Title for the Dutton Street property, of which she is now registered proprietor. But Mr Strikis resists handing it over because he says he is entitled to a lien over it. Mr Strikis says the lien over the Certificate of Title is claimed on two bases. One argument, he first advanced today, is that he acted as the solicitor for Mrs Gulbis, and is entitled to a lien for his unpaid legal fees. But he also says, and has long said, he holds the Certificate of Title as executor of the estate of the late Mr Gulbis.

3 Mrs Gulbis seeks relief under Legal Profession Act 2004, s 728 for the delivery up of the Certificate of Title to her present solicitor, Mr Michael O'Neill of the firm JP O'Neill, solicitors.

4 Mrs Gulbis was represented by Ms Kako of counsel, and Mr O'Neill today. Mr Strikis appeared in person. I have reached the view that I should make an order under Legal Profession Act, s 728 delivering the Certificate of Title up to Mrs Gulbis, for the reasons that follow.

5 The full title details of the property are not published in this judgment to reduce the risk of identity theft. But any person who seeks these details for proper purposes can do so from the Court file. Some background is necessary in order to provide an understanding of how the present dispute arises.

Background

6 The late Mr Gulbis, Mrs Gulbis and Mr Strikis were all known to one another through the Lutheran Church at Homebush. They were all members of the same church community.

7 Mr Strikis prepared Mr Gulbis' last will many years before he died, a will he executed on 24 July 2001. This will appointed Mr Strikis as executor. Mr Strikis was described in the will by Mr Gulbis as "my solicitor", reflecting the long-standing nature of their relationship.

8 Mrs Gulbis survived her husband. Clause 3 of the will therefore became operative, which gave the whole of his estate to Mrs Gulbis absolutely. But there was very little in the estate when he died in July 2009.

9 At the time of the deceased's death his assets were merely a jointly-held bank account at a local bank and the Dutton Street property. He had owned a motor vehicle. But that had been given away prior to his death. There were no other assets in his estate. Both those assets passed by operation of law upon his death to Mrs Gulbis, she being the joint tenant with him in each.

10 At law there was nothing went to the estate. There were no assets for the executor, Mr Strikis, to administer, as they all passed to Mrs Gulbis by operation of law. That is why the history of this case is so peculiar. Mr Strikis claims to have been an executor of an estate and to undertake executor's work. But he had nothing to administer.

11 The essential contest between the parties arises out of events within the 12 months after the deceased's death. Much of that history is uncontested. Mrs Gulbis has sworn an affidavit about those events. Mr Strikis has not filed any affidavit evidence. Instead at the hearing he sought to rely on the affidavits verifying his pleadings as his evidence. But because of his failure to give advance notice of that course to the other side, I have declined to allow him to do so. Mr Strikis just cross-examined Mrs Gulbis on her version of events. I accept all of Mrs Gulbis' evidence as accurate. I have no reason to doubt anything that is set out in her affidavit or in any of her oral evidence. She was plainly a witness of truth and no serious suggestion was made in final submissions by Mr Strikis that I should reject any part of her evidence.

12 Mrs Gulbis' account is this. Upon Mr Gulbis' death Mr Strikis, who was by then retired from legal practice in Sydney and was living in the country, came down for the funeral, which took place in late July 2009. Mrs Gulbis says, and I accept, that she said to Mr Strikis at the wake following her husband's funeral, "What do I have to do now that Vilis has died?" Mr Strikis replied to this, "Don't worry, I'll fix everything up for you. Just send me any papers you receive so I can deal with them." Mrs Gulbis says, and I accept, that she received some papers from Centrelink about bereavement assistance and various tax documents, which she sent on to Mr Strikis.

13 She says, and I accept, that in mid to late September 2009 she rang Mr Strikis and had a conversation with him in which she said, "Can you come and fix my husband's estate? I have to go into hospital in October to remove a cancer and I want it done before then, in case I don't come out." He said, "Yes, I will come down soon." He did come down. He agreed to see her. He drove from Lue, a small town in the Central West of New South Wales, to Bankstown and attended upon Mrs Gulbis at home. She gave him the Certificate of Title for the Dutton Street property (then still showing a joint tenancy), her husband's death certificate and the bank book for the joint savings account she held with her husband. She says, and I accept, that she asked him to fix everything up before she went into hospital and he said, "No, it has got to go to probate and it takes about two months. It should be fixed up by the end of November."

14 It was from here on that things started to go wrong. Mrs Gulbis' evidence is that she kept telephoning the defendant to ask how things were going. I accept that in January and February 2010 she telephoned and asked him "What is happening about transferring the house?" In late March or early April the defendant rang her back and said, "I have fixed the house. You will have to go to the council about your pensioner rebate."

15 The defendant had indeed done some legal work to transfer the house from the joint names of Mrs Gulbis and her late husband to enter the title into the name of Mrs Gulbis alone. Mr Strikis had lodged a Notice of Death for Mr Gulbis with the Land Title Office on 23 March 2010. This was a necessary ingredient for the Land Title Office to transfer the Dutton Street property into her name. He initiated that and described himself, the signatory on the Notice of Death, as the "Surviving joint tenant's solicitor". He certified in that signature the statement he made as "correct for the purposes of the Real Property Act 1900. By the person whose signature appears below". Penalties apply to persons who give misleading statements to the Land Title Office in such documents.

16 Mrs Gulbis continued to be unable to obtain the original Certificate of Title from Mr Strikis. She tried to contact him in May or June 2010 on a number of occasions but she was unsuccessful. Finally she instructed a new solicitor, Mr O'Neill of JP O'Neill Solicitors, to contact the defendant to get the Certificate of Title back.

17 Mr O'Neill's contact with Mr Strikis produced some surprising correspondence from him, given way he had executed the Notice of Death. Mr O'Neill sent his first email on 9 July 2010 to Mr Strikis:-

"We advise we have been instructed to act on behalf of the Rasma Gulbis. Please find enclosed an authority from our client, for your attention in relation to the release of documents held by your firm. We look forward to receipt of documents held by you at your earliest convenience."

18 The enclosed authority authorised Mr Strikis to forward to JP O'Neill Solicitors documents held on Mrs Gulbis behalf and her late husband's behalf but "not limited to my husband's death certificate, the certificate of title to the property at [address not published] Dutton Street, Bankstown and any original wills of me and my late husband".

19 Although that email was sent on 9 July 2010, it was not until today, 13 July 2012, just over two years later, that the documents in question were produced to the solicitors for the plaintiff through the compulsory process of the Court, a Notice to Produce.

20 The response back from Mr Strikis, was his email of 28 July 2010:-

"Dear Sir,

I have received your letter dated 9 July 2010. I claim a possessory lien over the documents which you seek. I will release to you the documents which I hold (including the current certificate of title in respect of F.I. C/393023) once I receive payment of the following (GST inclusive) sums:

Costs$1,650.00

Registration fee on TA95.00

Espreon fee for attending to registration27.50

-----------------------

$1,772.50

Mikelis Strikism B.A, LL.B.

Solicitor and Public Notary"

21 A notable feature of the 28 July 2010 email is that Mr Strikis refers to "costs" of $1,650 and signs himself off as a "Solicitor and Public Notary." Not surprisingly, Mr O'Neill interpreted this email as Mr Strikis representing the was making a claim as a solicitor for legal costs. In his letter of 6 August 2010 Mr O'Neill responded:-

"Dear Sir,

RE: DOCUMENTS HELD ON BEHALF OF RASMA & VILIS GULBIS

We refer to your e-mail of 28th July 2010 and are instructed that no costs discolure was made to our client nor has a tax invoice been sent to her.

If this is the case, it would appear that you will need to prepare an itemised bill for assessment.

Alternatively, you may wish to provide us with details of the actual work done to enable our client to assess the reasonableness of your charges.

Would you please let us know within the next 7 days what you propose to do?

Yours faithfully,

J P O'Neill

Per M. O'Neill"

22 Two days later on 8 August 2010 Mr Strikis replied. He did not provide an itemised bill. Indeed, no itemised bill has ever been provided in response to Mr O'Neill's 6 August 2010 request.

23 Instead the document set out a long somewhat rambling narrative of what Mr Strikis said he had done as executor of the estate over some time. But did not present an itemised bill. Most of what he said is set out below:-

"Dear Sirs,

From what you have said (in your e-mail quoted below) it would appear that you have misunderstood the situation. I am not claiming costs/remuneration as if I was a lawyer for Mrs Rasma Gulbis, but in my capacity as the executor of the estate Mr Vilis Gulbis. I - in my capacity as the executor - have not instructed any solicitor to act for me, so no costs disclosure has been made to me. Similarly, I - in my capacity as a solicitor - have not been retained by any client in connection with the estate and, accordingly, I have no client to whom I owe a duty of costs disclosure.

The process of costs assessment is not appropriate of a claim for an executor's commission or other remuneration.

It is true that I have not issued any tax invoice. But why would I issue a tax invoice to Mrs Gulbis (as you have suggested?) It is therefore properly be issued to the executor of the estate, not to Mrs Gulbis.

...

Applying my expertise and experience, I determine that the estate could be administered without necessarily obtaining a formal grant of probate.

I prepared and caused to be registered a Notice of Death, thus effecting transfer of the ownership of the matrimonial home in Mrs Gulbis' sole name. That did, of course, involve the preparation and submission not only of the Notice of Death itself, but also of ancillary documents (including a certified copy of the death certificate, a Notice of Sale or Transfer of Lans, instructions to Sydney agents, etc). I informed Mrs Gulbis, in a telephones conversation in April 2010, that the charge of ownership had been completed.

...

Mrs Gulbis informed me, when I attended at her home, that Vilis had no debts at the time of his death. I have not subsequently become aware of any creditor to whom/which any payment needs to be made.

I have not previously sought or received any funds from Mrs Gulbis, but have hitherto met all expenses out of my own pocket.

In essence, the estate has been fully administered and what remains to be done is for the executor to be appropriately remunerated. If I need to apply to the Supreme Court of NSW for such an order, the court filing fee alone will be $779.00, to say nothing of the significant legal costs which would be incurred in the making and the defending of an application - which is certain to succeed, for I have yet to learn of any case where the executor, having done everything necessary to administer the estate, receives nothing at all for his pains and troubles.

Mikelis Strikis, B.A., LL.B.

Solicitor and Public Notary"

24 Not surprisingly, Mr O'Neill questioned again the fact that that Mr Strikis' e-mail indicated that he was acting for Mrs Gulbis, the joint tenant of he Dutton Street property. He pointed out to Mr Strikis on 11 August 2010, "We understand that no cost disclosure was made to our client nor has a tax invoice been sent to her for this work in accordance with the requirements of the Legal Profession Act."

25 Notwithstanding Mr O'Neill's 11 August 2010 reminder, no further itemised bill of costs, nor any costs disclosure has ever been provided by Mr Strikis for legal work for Mrs Gulbis.

26 Until today there was a reason for that. Mr Strikis has continued to maintain in these proceedings, until final submissions today, that he was acting at all times as executor of the estate, rather than as Mrs Gulbis' solicitor in all that he has done.

27 Mr Strikis now claims a lien in respect of his costs. But he has adduced no admissible evidence of the reasonableness of his fees or the hours actually worked other than correspondence in which he has claimed certain amounts by email from Mrs Gulbis. There is some evidence apart from those assertions that he has done some work. But exactly what his justifiable charges are is difficult to say as he does not make clear the basis of this charging. It is conceded though by Mrs Gulbis that he did come and visit her and clearly some work in some form was done for her. Moreover, that can be inferred from the obtaining of the Certificate of Title from the Land Title Office. But he has never issued an itemised bill to Mrs Gulbis.

28 With this background, Mr Strikis principally says that he was solely acting as executor of the estate and not as solicitor. Mrs Gulbis says he was acting as her solicitor.

Analysis of the Claims

29 Mr Strikis' essential claim here is one of a lien over the Certificate of Title. He claims it as an executor and in the alternative as a solicitor. I am persuaded that Mrs Gulbis' case is correct for two main reasons.

30 First I characterise the relationship between her and Mr Strikis as that of solicitor and client. As soon as he saw the document he was given, a Certificate of Title between joint tenants one of whom had died, in my view it must have been obvious to him he was being retained to act for Mrs Gulbis to effect the transfer of the title into her name. But I also reach this conclusion because his claim of a lien in respect of his role as executor seems to be untenable. Let me go to the first of these reasons.

31 Mrs Gulbis, like many clients, made a vague, understandably unspecific statement to Mr Gulbis about what she wanted him to do. She wanted everything "fixed up". She did not herself give any thought to the niceties as to whether Mr Strikis would act for her as her solicitor for the estate as executor when he was doing as she asked. But he certainly undertook to "fix" everything up. In my view, by the time Mr Strikis came to Sydney in September 2009 and picked up the documents and they were placed in his possession and he had had an opportunity to look at them the implicit nature of his instructions to act as her solicitor on her behalf must have been clear to him. But her oral statements to him were sufficient to achieve the same result, of a retainer.

32 There can be no doubt in my view that Mr Strikis interpreted what he was given in September 2009 the way that I have concluded. In the Notice of Death he described himself as the "solicitor for the surviving joint tenant". He now says from the Bar table - he has not given evidence - that he did not know what he was thinking at the time that he signed the Notice of Death. That is a very surprising statement from a solicitor who had an obligation not to mislead the Land Title Office. I infer in his favour he knew exactly what he was doing when he lodged the Notice of Death: he was representing the truth to the Land Title Office that he was Mrs Gulbis' solicitor.

33 Her evidence and his admission are sufficient in my view to establish that that the relationship between them was that of solicitor and client. The beginning of this relationship in my view was no later than the time the documents were picked up in Sydney in late September 2009.

34 Mr Strikis says that he did not appreciate until he got back to Lue that when he looked at the documents that they meant the only work to be done really was to transfer property by operation of law outside the estate. But as he has not given evidence this was merely a statement from the bar table. That statement does not in my view interfere with the basic inference that I have drawn. The other reason I conclude there was a solicitor/client relationship is that the contention Mr Strikis was acting as executor in all he did seems to me to be untenable.

35 Acting as an executor and thereby being in a position to claim to a lien seems to me to be untenable. He may perhaps have been fulfilling some executorial functions as he drove down from Lue to pick up the Certificate of Title, not knowing then exactly what was in it. He was certainly incurring some personal costs in anticipation of fulfilling functions as an executor. But he has not sought to take out probate. He has never claimed commission under Probate and Administration Act 1898, s 86. The only asset he is now holding is a Certificate of Title which is not even an estate asset. As a solicitor/executor after claiming and being granted commission he would have a right of indemnity to be paid his commission out of the estate's assets. But he does not hold any estate asset. The basis, even as executor, upon which he claims a lien over this Certificate of Title is something of a mystery.

36 That brings me then to the form of relief claimed. The plaintiff puts her cause really two ways. She relies Legal Profession Act, s 728 and alternatively she seeks a declaration that there was no solicitor's lien.

Legal Profession Act, s 728

37 I have a broad discretion that may overcome a solicitor's lien. In my view the case can be disposed of by the exercise of my jurisdiction under Legal Profession Act, s 728 without going into the question of whether or not a solicitor's lien actually exists over the Certificate of Title, although I will say something about that question in the alternative.

38 Legal Profession Act, s 728 confers upon the Court a broad power to order the delivery up of documents by a solicitor upon the application of a client. Section 728 provides:-

"728 Supreme Court may order delivery up of documents etc

(1)On the application of a client of a law practice, the Supreme Court may order the law practice:

(a)to give to the client a bill of costs in respect of any legal services provided by the law practice, and

(b)to give to the client, on such conditions as the Supreme Court may determine, such of the client's documents as are held by the law practice in relation to those services.

(2)Subsection (1) does not affect the provisions of Division 11 of Part 3.2 with respect to the assessment of costs.

(3)This section does not apply to the client of a law practice retained on the client's behalf by another law practice.

(4)In this section, a reference to a law practice includes a reference to:

(a)in the case of a person who was a sole practitioner when the legal services concerned were provided:

(i)the former sole practitioner, or

(ii)the executor of the will of the former sole practitioner, or

(iii)the trustee or administrator of the estate of the former sole practitioner, and

(b)subject to any other applicable arrangements:

(i)the persons who were the partners of a former law firm or multi-disciplinary partnership when the legal services concerned were provided, and

(ii)in the case of a law firm or multi-disciplinary partnership where there has been a change of partners since the legal services concerned were provided-subject to any other applicable arrangements, the firm or partnership as currently constituted, and

(iii)the assignee of a law practice or former law practice, and

(iv)the receiver of a law practice or former law practice appointed under this Act, and

(c)any person of a class prescribed by the regulations for the purposes of this subsection."

39 The power to order delivery up of documents is not modified by any statutory requirement to preserve a solicitor's lien. The Court is merely given power to impose "such conditions" as it "may determine". Such conditions may or may not involve the preservation of any solicitor's lien attaching to the documents. Much depends upon the circumstances which may vary widely: Gigi Entertainment Pty Ltd v Macree [2011] NSWSC 856; Blazai Pty Ltd v Maley t/as MacLarens Solcitors & Attorneys [2012] NSWSC 489.

40 There are at least four considerations in my view why the Court should exercise its Legal Profession Act, s 728 discretion to order the release of the Certificate of Title, to Mrs Gulbis. These are based on the whole of the circumstances of the solicitor/client relationship between Mrs Gulbis and Mr Strikis that the Court has found.

41 First, Mr Strikis did not acknowledge his relationship of solicitor and client with Mrs Gulbis, notwithstanding that must have been obvious to him that was their true relationship. He has never acknowledged the existence of that relationship until today, for the purposes of argument. He has said that he is only working as executor despite the obvious evidence to the contrary. This has caused great delay to the plaintiff in getting her Certificate of Title.

42 Secondly, Mr Strikis has never given any cost disclosure as a solicitor to Mrs Gulbis or any retainer documents notwithstanding the fact that the Notice of Death acknowledged the relationship. This has caused Mrs Gulbis more unwarranted delay, when she has a clear entitlement to it.

43 Thirdly, Mr Strikis has never provided a bill of cost despite legitimate requests for one from Mr O'Neill. I do not agree with the defendant's construction of Mr O'Neill's correspondence, that he was entitled to give a general type of narrative in response to Mr O'Neill's request. One who comes to court seeking to maintain a solicitor's lien should have been able to provide an itemised bill of the claimed costs in much less than two years.

44 Fourthly, even today when he did acknowledge a solicitor/client relationship, he did so keeping the option open that he was also an executor. He did not abandon that argument but has maintained what seems to me a quite untenable position for a long time.

45 I will make orders under section 728. The orders will be that the Certificate of Title be given to Mrs Gulbis' solicitor, Mr O'Neill.

Solicitor's Lien

46 In the alternative it seems to me the relief Mrs Gublis claims at general law of a finding there is no solicitor's lien here, is equally available. The solicitor's lien Mr Strikis claims seems to me not to be maintainable for several reasons.

47 First, the relationship I have found is one of solicitor and client. But there is no money due from Mrs Gulbis to Mr Strikis under that relationship and no prospect from the position Mr Strikis takes, that any money will ever be due to him, as he has not complied with Legal Profession Act, Pt 3.2 and shows no intention of doing so in the future. Yet Mr Strikis has claimed costs from Mrs Gulbis by invoice in an amount of $1,650 as executor. It seems to me that is also a misconceived claim of no legal effect without an order for executor's commission under Probate and Administration Act, s 86. He has not made any attempt to seek such an order.

48 But fundamentally though Mr Strikis has not established that there is any amount due or likely to be due to support the lien, notwithstanding a cross-claim was put on and he was given an opportunity to file supporting evidence, which he did not take up. He may have done work but he has not made any attempt at hearing to establish its value. It seems to me there is no monetary basis on which I could find that the lien would continue to exist on the state of the evidence. I therefore find for Mrs Gulbis on that basis as well.

49 The same conclusion can be reached by another means. It is trite law that a lien will be lost if it is claimed for the wrong cause of action or for the wrong amount: Automobile & General Finance Co Ltd v Cowley - Cooper (1948) 49 SR (NSW) 31,37 and White v Bini [2003] FCA 669. Here Mr Strikis has claimed a lien on the basis that a particular sum is due to him: as a solicitor, when it is not; or as an executor, when it is not. A solicitor's lien is a fragile security. This hearing was the opportunity for Mr Strikis to show what was due to him in comparison to what is claimed. In that he has failed. Whatever lien he ever had would now be dissolved because of his wrong claim.

Indemnity Costs

50 The defendant has sought to maintain legally unmaintainable defences. He has continued to advance a position in these proceedings that wholly lacks legal merit. His conduct has generated and extended these proceedings. Now that he has failed an order for indemnity costs is appropriate: Hypec Electronics Pty Ltd (in liq) v Mead (2004) 61 NSWLR 169 at 178-181 ([40]-[47]) per Campbell J; Harrison v Schipp [2001] NSWCA 13 at [136] per Giles JA; NMFM Property Pty Ltd v Citibank (No. 11) (2001) 109 FCR 77 at 92 [56] per Lindgren J; Baillieu Knight Frank (NSW) v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362 and Degmam Pty Ltd (in liq) v Wright (1983) 2 NSWLR 354 per Holland J.

Orders

51 Accordingly I make the following orders and directions:

1.Order that the Certificate of Title for the Dutton St property be released today to Mr O'Neill, the solicitor for the plaintiff.

2.Order that there be released today to the solicitor for the plaintiff the following documents: (i) the death certificate of the deceased; (ii) the original will of the deceased made by Mr Gulbis dated 4 July 2001; (iii) a copy of the funeral account from DV Funeral Fund dated 21 July 2009; and (iv) the investment fund invoice dated 31 July 2009.

3.Order the defendant to pay the plaintiff's costs of the proceedings, on the claim and the cross-claim, on an indemnity basis.

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Decision last updated: 17 July 2012