FEDERAL COURT OF AUSTRALIA

Coshott v Barry [2016] FCAFC 173

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first and second respondent’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In accordance with reasons for judgment in Coshott v Coshott [2015] FCA 1284, the primary judge ordered that $265,911.97 of the proceeds of sale of the bankrupt first appellant’s half share in a property which was sold should be paid to the first and second respondents in satisfaction of their solicitors’ lien arising from unpaid legal fees. The appellants contend that the primary judge erred in so concluding.

2    The undisputed facts are these. The first and second respondents, Mr Barry and Mr Board, are solicitors. They practise under the firm name CKB Associates Lawyers (CKB). CKB performed a variety of legal work for Robert Coshott (both individually, and jointly with his wife, Ljiljana Coshott), who was later declared bankrupt. In other proceedings, which need not concern us, it was held that Mr Coshott owned a half share in a property in Bellevue Hill and that his half share vested in Mr Coshott’s trustee in bankruptcy. CKB had acted for the Coshotts on the purchase of the property and held the certificate of title. The property was required to be sold by order of the Court. The solicitors asserted a lien over the certificate of title for unpaid legal fees. Without waiving their right to assert the lien and to claim the unpaid fees from the proceeds of sale, the solicitors produced the certificate of title, pursuant to an order of this Court, to enable the sale of the property. The property was sold and a portion of the sale proceeds were paid into court. Mr Barry and Mr Board filed an interlocutory application for a declaration that they were entitled to receive a specified amount on account of their unpaid fees, and an order that the amount be paid out to them. The primary judge decided in favour of Mr Barry and Mr Board, and made orders accordingly.

3    Given that a number of the grounds on which it is asserted that the primary judge erred were not put below, so that leave is required to raise them on appeal, no purpose is served by identifying the reasoning process of the primary judge.

4    To the extent that the appellants sought to resile from their concession and agreement below that if there was a valid lien it would be preserved and apply to the sale proceeds, the attempt (if made, which remains unclear) should be rejected. The primary judge ordered that the certificate of title be delivered up to enable the sale on the basis that the money paid into Court would be subject to the lien (if it existed). The approach was consistent with authority. In White v Bini [2003] FCA 669 at [3], Finkelstein J said:

A person generally requires possession of the property over which the lien is claimed: Pennington v Reliance Motor Works, Ltd [1923] 1 KB 127, 129 per McCardie J: (“Even if the defendants had at one time an enforceable lien against the plaintiff they lost it by voluntarily giving up possession”). However, the rule is not absolute. For example, it is now well established that lodgement of documents with the court pending the determination of the existence of a lien “[does] not discharge the lien, if, in fact, such lien existed.”: Re Ly and Another; Ex parte Dixon v Ly and Others (1995) 62 FCR 432, 433. See also Bolster v McCallum [1966] 2 NSWR 660, 665 per Asprey JA: (“In neither case is the lien of the solicitor destroyed by the procedure to which I have referred as possession of the documents, which is essential to the retention of the lien, is not lost because, for the purposes of the litigation, the Court has temporary custody of them”). Therefore, a solicitor will not lose his claimed lien if he parts with possession of the documents on the basis that the amount claimed is paid into court. In Beneficial Finance Corp Ltd v Conway (No 2) [1971] VR 594, 607 McInerney J said that “[t]he result of such an order is to substitute the fund in court for the documents as the security for the defendant’s claim”. See also In re Galland (1885) 31 Ch D 296, 303 per Chitty J: (“The Court in the exercise of its discretion says that if the solicitor is completely secured, and it takes care not to enter upon a matter of controversy as to the amount, but to give him the amount which he claims and a sum to answer the costs of the taxation, it is inequitable that he should be allowed to embarrass the client further by holding the papers”).

5    The first argument on the appeal is that any lien the solicitors might have had was lost because the solicitors had claimed the wrong amount. The appellants rely on the observations in White v Bini at [10]:

It is trite law that a lien will be lost if it is claimed for the wrong cause or the wrong amount: Automobile & General Finance Co Ltd v Cowley-Cooper (1948) 49 SR (NSW) 31, 37. A lien will also be lost if a person claims it for two debts (one due and one not due) and intimates that he will not part with possession unless both debts are satisfied: Jones v Tarleton (1842) 152 ER 285; Kerford v Mondel (1859) 28 LJ (Ex) 303. In Albemarle Supply Co, Limited v Hind and Company [1928] 1 KB 307, 318-319, Scrutton LJ said:

“A person claiming a lien must either claim it for a definite amount, or give the owner particulars from which he himself can calculate the amount for which the lien is due. The owner must then in the absence of express agreement tender an amount covering the lien really existing. If he does not, unless excused, he has no answer to a claim of lien. He may be excused from tendering (1.) if he has no knowledge or means of knowledge of the right amount; (2.) if the person claiming the lien for a wrong cause or amount makes it clear that he will not release the goods unless his full claim is satisfied, and that amount is wrongful. The fact that the claim is made for more that the right amount does not matter unless the claimant gives no particulars from which the right amount can be calculated, or makes it clear that he insists on the full amount of the right claimed.”

6    The principle is not in doubt. The problems for the appellants are that the point as now sought to be put was not run below and, as the facts identified below will disclose, it would be unjust to permit the point to be raised in the appeal.

7    The facts are these. Before the interlocutory application was filed, the amounts claimed to be owed by Mr Barry and Mr Board included two sets of costs which were not pursued in the interlocutory application. During the hearing below, counsel for Mr Barry and Mr Board said that those claims (items numbered 9 and 10 in a schedule) were not pressed. The appellants now use this as a springboard for a submission that the amounts claimed in 9 and 10 were not payable at all, so that the lien was lost by reason of a claim for the wrong amount.

8    We disagree. The fact that Mr Barry and Mr Board did not seek to enforce the lien over the amounts in items 9 and 10 does not mean that they claimed the wrong amount and thereby destroyed their lien. Nor does the fact that the costs so claimed had not yet been assessed. It also does not matter that the costs were owed by Mr Coshott alone. As explained by counsel for Mr Barry and Mr Board, the lien was asserted over a certificate of title in the name of Mr and Mrs Coshott. It is well established that each co-owner has a right to possess the certificate of title (Official Trustee in Bankruptcy v Kioussis [2000] NSWSC 248; (2000) 10 BPR 18,021 at [15]) so that the certificate could be held in respect of the debts of Mr Coshott alone.

9    Roam Australia Pty Ltd v Telstra Corp Ltd t/as Telecom Australia [1997] FCA 980 (Roam), to which counsel for Mr Barry and Mr Board referred, is also relevant in this regard. In Roam, as in the present case insofar as items 9 and 10 are concerned, the costs said to support the lien had not been assessed. It was not suggested that the lien did not apply merely because the costs had not been assessed. Rather, Lehane J said:

There is then the question of the orders to be made. It is, I think, inappropriate, in the absence of taxation or assessment, and of agreement as to the amount owing, to order payment of any sum to the solicitors. Certainly (subject to the question of the costs of this motion) Roam is entitled to so much of the amount payable by Telstra as exceeds $16,695, the amount claimed by the solicitors. An appropriate arrangement may be that the sum of $16,695 be placed in a joint interest-bearing account pending ascertainment, by the appropriate means, of the amount which the solicitors are owed. If there is no agreement on some such arrangement, then the appropriate order is, I think, that the sum of $16,695 be paid into Court pending ascertainment of the amount owing. Clearly the process of ascertainment should be undertaken without delay.

10    Having regard to this, it is not difficult to appreciate why the claims for the costs in items 9 and 10 might were not pressed before the primary judge (as opposed to having been abandoned).

11    In any event, the relevant point is that no suggestion was made to the primary judge that the decision not to claim the amounts in items 9 and 10 meant that the wrong amount had been claimed so that the lien was destroyed. It is not difficult to see that, had it been made, the course of the hearing before the primary judge would likely have been different. For one thing, the solicitors may have pressed their claim for inclusion of these costs. For another, evidence could have been given or submissions made to the effect that the claim for the amounts in items 9 and 10 was not abandoned and not wrong. None of this occurred because the only debts that the appellants said below had been wrongly claimed were four other sets of costs where it had been found in a separate proceeding that the causes of action for recovery were statute-barred.

12    The appellants should be bound by the way in which they put the case below because “evidence could have been given which by any possibility could have prevented the point from succeeding” (see Coulton v Holcombe (1986) 162 CLR 1 at 7).

13    The second argument on the appeal relates to the effect of the judgment of McCallum J in Coshott v Barry [2012] NSWSC 850 (Coshott v Barry) in which her Honour held that four of the debts underlying the claims were statute-barred by operation of the Limitation Act 1969 (NSW) (Limitation Act). At [53] of that decision, McCallum J said:

It follows, in my view, that the defendants’ right and title to the debts quantified in the four certificates that have not been filed is extinguished. However, it does not follow that the certificates issued by the costs assessors are ultra vires and that the costs assessors had no jurisdiction to issue them, as contended by the plaintiff. A costs assessor has power to determine an application properly brought (by confirming the bill or substituting a fair and reasonable amount: s 208A(2) [of the Legal Profession Act 1987 (NSW)]). The certificates stand as a quantification of the costs billed, which may serve broader purposes than the enforcement of a debt. In the present case, the defendants noted that the quantification of those costs is relevant to the enforcement of a lien claimed by them over the plaintiff’s goods. For that reason alone, the certificates have utility: see s 68 of the Limitation Act.

14    Insofar as the appellants maintained any argument based on this judgment, it is sufficient to quote in response the submissions from counsel for Mr Barry and Mr Board:

It is well established that a “solicitor’s lien on documents in his hands for a statute-barred debt is not affected by the fact that the debt has become statute-barred: Higgins v Scott [(1831) 2 B & Ad 413; 109 ER 1196] (cited with approval …in Commonwealth v Mewett [[1997] HCA 29; (1997) 191 CLR 471 at 535).

15    The third argument on the appeal concerns the operation of s 68 of the Limitation Act. Section 68 is in these terms:

Notwithstanding this Division, where:

(a)    a person is in possession of goods, and

(b)    the person has a lien on the goods for a debt or other money claim payable by a second person,

the right and title of the first person to the debt or other money claim is, as against the second person and the second person’s successors, saved from extinction under this Division for so long as a cause of action of the second person or of a person claiming through the second person for the conversion or detention of the goods or to recover the proceeds of sale of the goods has not accrued or is not barred by this Act, but only so far as is necessary to support and give effect to the lien.

16    The relevant Division is Div 1 of Pt 4 of the Limitation Act. Section 63 is in that Division. Section 63 is in these terms:

(1)    Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person’s successors, extinguished.

(2)    Where, before the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to the debt damages or other money:

(a)    for the purposes of the action, or

(b)    so far as the right or title is established in the action.

(3)    This section does not apply to a cause of action to which section 64 or section 65 applies.

17    Sections 64 and 65 are not relevant for present purposes.

18    One of the appellants’ arguments is this: s 68 saves relevant debts from extinction but does not resurrect an extinguished debt. Four of the debts were extinguished (see McCallum J in Coshott v Barry). Thus, s 68 does not save those extinguished debts.

19    We disagree. Section 68 operates notwithstanding, relevantly, s 63. The finding of extinguishment in Coshott v Barry was based on the operation of the Limitation Act and the expiry of six years since accrual of the causes of action in respect of the debts. It follows that s 68 operates according to its terms. The finding of extinguishment in Coshott v Barry is therefore immaterial.

20    The appellants also put this argument: s 68 only saves from extinction the right and title of the solicitors to the debts “for so long as a cause of action of the second person or of a person claiming through the second person [Mr Coshott] for the conversion or detention of the goods or to recover the proceeds of sale of the goods has not accrued or is not barred by this Act, but only so far as is necessary to support and give effect to the lien”. Mr Coshott’s cause of action for the detention of the certificate of title arose either on the receipt of the certificate of title after completion of the sale (July 2003) or on Mr Coshott having demanded the certificate of title (which occurred on 28 September 2008). Either way, the cause of action had accrued, the six year limitation period had begun and ended, and the cause of action was now statute-barred, so that s 68 no longer operates to save the debts from extinction.

21    In support of this argument, reference was made to Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420, in particular the observations of Allsop P (as he then was), as follows:

[117] Conversion can, of course, occur by retaining goods after a demand. The act of retention is one that is repugnant to the owner’s right to possession expressed by the call for making available or return of the goods. Mere unauthorised possession of another’s chattel is not a conversion of it: Clayton v Le Roy [1911] 2 KB 1031 at 1048–1050; Barclay’s Mercantile Business Finance Ltd v Sibec Developments Ltd [1992] 1 WLR 1253 at 1257; Spackman v Foster (1882–1883) 11 LR QBD 99 at 100–101. For possession or keeping to be a conversion a demand is required: Clayton v Le Roy at 1052; and General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644 at 649.

[118] The character of any demand to enliven the obligation to make the goods available has been said to be unconditional: Rushworth v Taylor (1842) 3 QB 699 ; 114 ER 674 and specific, not as to an unspecified portion of a whole collection: Abington v Lipscomb [(1841) 1 QB 776; 113 ER 1328].

…

[124] The framing of a precise definition of the tort of conversion has been described as “well nigh impossible”: Lord Nicholls of Birkenhead in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 at 1084 [39]; and see also Hiort v London & North Western Railway Co (1879) 4 Ex D 188 at 194 per Bramwell LJ. The essential elements, or basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to the rights of the owner, including possession and any right to possession. Such an act or dealing will amount to such an infringement of the possessory or proprietary rights of the owner if it is an intended act of dominion or assertion of rights over the goods: see generally Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 217–221 (per Latham CJ), 228–230 (per Dixon J, with whose statements of principle Starke J agreed at 221), 234–235 (per McTiernan J), and 239–244 (per Williams J); and Kuwait Airways at 1084 [39]–[42] (per Lord Nicholls of Birkenhead), 1104 [119] (per Lord Steyn) and 1106 [129] (per Lord Hoffmann).

22    The appellants also submitted that a lien is merely a possible defence to a claim for the return of goods, but does not deny the wrongful character of the retention of the goods, at least once a demand is made. They referred to the statement of Diplock LJ in Tappenden v Artus [1964] 2 QB 185 at 198 that:

The common law remedy of a possessory lien, like other primitive remedies such as abatement of nuisance, self-defence or ejection of trespassers to land, is one of self-help. It is a remedy in rem exercisable upon the goods, and its exercise requires no intervention by the courts, for it is exercisable only by an artificer who has actual possession of the goods subject to the lien. Since, however, the remedy is the exercise of a right to continue an existing actual possession of the goods, it necessarily involves a right of possession adverse to the right of the person who, but for the lien, would be entitled to immediate possession of the goods. A common law lien, although not enforceable by action, thus affords a defence to an action for recovery of the goods by a person who, but for the lien, would be entitled to immediate possession.

23    If it were otherwise, the appellants submitted, the lien would run in perpetuity, which would be contrary to public policy and inconsistent with the report of the New South Wales Law Reform Commission upon which the Limitation Act was based, The First Report on the Limitation of Acts ([1967] NSWLRC 3) (the Law Reform Commission report) at [315], in which it was said that a debt secured by a possessory lien would be saved for as long as the owner of the goods has a cause of action for the conversion or detention of the goods.

24    We disagree with the appellants’ submissions.

25    To the extent that the Law Reform Commission report functions as an aid to construction (see sub-ss 34(1) and 34(2)(b) of the Interpretation Act 1987 (NSW)), it discloses no suggestion that the law with respect to possessory liens should be altered. The nature of such a lien is not in doubt. In Re Cao; Ex parte Dixon [1996] ANZ ConvR 321, Beazley J (as she then was) said at 321 - 322:

A solicitor’s lien is possessory only, the classic statement of the nature of a lien being found in the judgment of Evershed MR in Barratt v Gough-Thomas (1951) 1 Ch 242 at 250 as follows:

The nature of a solicitor’s general retaining lien has more than once been authoritatively stated. It is a right at common law depending (it has been said) upon implied agreement. It has not the character of an encumbrance or equitable charge. It is merely passive and possessory: that is to say, the solicitor has no right of actively enforcing his demand. It confers upon him merely the right to withhold possession of the documents or other personal property of his client or former client - in the words of Sir E Sugden, LC, “to lock them up in his box, and to put the key in his pocket, until his client satisfies the amount of the demand” (Blunden v Desart (1842) 2 Dr & W 405, 418). It is wholly derived from and therefore co-extensive with the right of the client to the documents or other property (see the statement of Lord Cranworth, LJ, in Pelly v Wathen (1851) 1 De GM & G 16, 23), cited by Chitty J, in In re Llewellin [1891] 3 Ch 145, 148).

A solicitor’s right to a lien is co-extensive with the client’s rights to the documents or goods in question. As Cransworth LJ said in Pelly v Wathen (1851) 1 De GM&G 16 at 23:

It is a right derived entirely through the client, and therefore, on the most obvious principles of justice, cannot go beyond the right of the client himself. If the client’s right to the deeds which came to the hands of the solicitor is absolute, so will be the right of the solicitor. If the deeds in the hands of the client are subject to any rights outstanding in third parties, such rights will follow them into the hands of the solicitor.

See also Re Llewellin (1891) 3 Ch 145; Sawyers v Kyte (1870) 1 VR 94 at 97; McLeish v Palmer (1921) 22 SR (NSW) 53 at 57.

The capacity by reference to which the documents or goods are held is essential to the determination of whether a lien exists. See Barratt v Gough-Thomas. In Re Wright; Ex parte Clout (1984) 1 FCR 51 at 53, Beaumont J stated:

It is well established that the “retaining” lien of a solicitor extends only to property delivered to him in his professional character. Thus, he has no lien on papers which he receives as mortgagee or trustee, although a solicitor trustee has a lien on the trust estate for all costs to which he is properly entitled as solicitor to the trust (see Cordery on Solicitors, 7th ed (1981) at 274-275; Halsbury’s Laws of England, (4th ed) vol 44 at 171; Sykes, Law of Securities, (3rd ed) at 561). Where money is paid to a solicitor for a particular purpose so that the solicitor becomes a trustee of that money, the solicitor's lien will not attach to the money unless it is allowed to remain in the solicitor's hands for general purposes with the client’s express or implied consent after the particular purpose has been fulfilled or has failed (see Alessio v Daniels, Kaye J, Supreme Court of Victoria, unreported, 19 October 1983 at 5-8). Thus, in such cases, a threshold question, essentially one of fact, arises as to whether the moneys were paid to the solicitor for a specially designated purpose on the one hand or were merely paid to him “in the ordinary course of his business as solicitor for the client” on the other (see Loescher v Dean [1950] 1 Ch 491 at 495).

26    While there is no authority on point, we are persuaded by the submissions put for Mr Barry and Mr Board. Section 68 reflects the common law – the lien is coextensive with the client’s rights. The lien involves a passive, possessory right. That right, if the lien is valid, means that there is no wrongful detention by a solicitor in exercising the possessory right in question. The causes of action in conversion or detention both require an infringement of the possessory or proprietary rights of the owner. Continued possession pursuant to the exercise of a valid lien involves no such infringement. It involves no wrong as against the owner which might give rise to a cause of action for return of the goods or otherwise. This does not mean that every asserted lien operates in perpetuity. If there is no lien, or the claim for the lien is invalid, or the lien has been lost, then continued possession of the goods will be capable of constituting a tortious infringement of the possessory or proprietary rights of the owner. An owner who asserts that there is no lien or any lien is invalid or has been lost, is thus entitled to relief if these propositions can be made good. The cause of action of such an owner will accrue either on the making of a demand, or on the occurrence of other conduct which amounts to an infringement of the possessory or proprietary rights of the owner (such as refusal to return the goods after the debt which supports the lien is paid). However, in a case where the lien is valid and the money owing supporting the lien is not paid, the cause of action of the owner does not accrue. The lien continues, and can be used as in the present case.

27    It follows that, if the lien is valid, the debts are saved from extinction by the Limitation Act so far as is necessary to support and give effect to the lien.

28    The fourth argument is that the certificate of title was incapable of being held under a lien because it came into the hands of the solicitors after the solicitor-client relationship had ended.

29    There are two answers to this proposition.

30    The first answer is that was not put to the primary judge and, indeed, is inconsistent with the position of the appellants below. Before the primary judge, the appellants expressly accepted that the solicitors were entitled to assert a general or possessory lien over the certificate of title. Had the argument now sought to be put on appeal been raised below, it is apparent that the case would have involved different considerations. For example, the date on which the relevant retainer ended would have been important and in issue. As it was, however, the date was not relevant, and thus there was no reason to determine that date with any accuracy. Based on the evidence, the primary judge found that the retainer ended on 26 August 2003 (at [4]), but the relevant fact is that had the issue been important then it is apparent that the issue would have been explored at first instance. Moreover, and as the notice of contention discloses, there were other facts which were capable of giving rise to other arguments, none of which were raised below. As counsel for the respondents said, had the issue been raised below, evidence could have been adduced about all of the circumstances relating to receipt of the bank cheque from Mr Coshott for payment of the stamp duty on the purchase of the property (which could have been seen as affirming the retainer) and it could have been asserted that Mr Coshott was estopped from denying the continuation of the retainer until receipt of the new certificate of title and payment of stamp duty owing on the transfer.

31    We agree with the submissions for Mr Barry and Mr Board. The date when the retainer ended was not an issue relevant to the resolution of any contention below. For the argument sought to be raised in the appeal, however, that date is critical. The appellants should be bound by the way in which they put the case below because, again, “evidence could have been given which by any possibility could have prevented the point from succeeding” (Coulton v Holcombe at 7). The fact that the appellants attempt to rely on the primary judge’s finding that the retainer was terminated on 26 August 2003 (when the date was not important), discloses the unfairness which is involved in the appellants seeking to raise this argument for the first time in the appeal.

32    The second answer is that the point is bad in any event, even on the limited evidence available. For this purpose it is sufficient to record the submissions put by counsel for Mr Barry and Mr Board as follows:

There was clear evidence before the primary judge that:

38.1.     settlement had occurred prior to 26 August 200328 and the Respondents had possession of the certificate of title received on settlement and the executed Transfer;

38.2.     the appellants had not provided funds for payment of stamp duty on the contract and transfer. The Respondents by letter dated 21 August 2003 requested funds for payment of stamp duty which was due to be paid by 3 September 2003 without penalties;

38.3.     the conveyancing retainer required the solicitor to arrange stamping of the contract and transfer and then registration of the transfer at the Land Titles Office;

38.4.     on 1 September 2003 the appellants provided the Respondents with a bank cheque in favour of the Office of State Revenue for $107,869.00 for payment of the stamp duty on their contract and transfer;

38.5.     the Respondents arranged for stamping of the contract and transfer and then lodged the transfer for registration of the appellants as the registered proprietors of the property;

38.6.     the receipt by the Respondents of the new certificate of title to the property occurred in the ordinary course of the conveyancing transaction where they acted for the purchasers of the property;

38.7.     the retainer of the Respondents in respect of the conveyancing transaction of the purchase of the Property was reinstated by the appellants on or about 1 September 200336;

38.8.     the certificate of title Folio Identifier ### third edition was received by the Respondents from the Registrar-General following registration of the transfer to the appellants in the course of their retainer to act on the purchase of the property.

33    It was also put in written submissions for the appellants that the lodgement with the Land Titles Office of the certificate of title received on settlement, so that a new certificate of title in the name of the appellants could be issued, destroyed the lien. This submission is without substance. The certificate of title in the name of the appellants came into the hands of the solicitors as part of (and as an ordinary consequence of) the conveyancing transaction which they had been retained to carry out. The purported termination on 26 August 2003 could not be understood to apply to that transaction, as the subsequent sending of the bank cheque to the solicitors for payment of stamp duty made plain. Even the purported termination of the retainers of the solicitors (of which there were at least ten) required them to do further work in respect of those matters.

34    The last argument is equally unmeritorious. It is that the solicitors received the certificate of title for the limited purpose of lodging it with the Land Titles Office for the purpose of a new certificate of title being issued in the name of the appellants. As such, the lien must be a single purpose lien limited only to the costs applicable to that purpose and no more. The notion of a confined retainer, limited to payment of the stamp duty and no more, is self-serving and unfounded.

35    Again, the argument is inconsistent with the case put by the appellants below, which conceded the existence of a general possessory lien over the certificate of title which had been issued in the name of the appellants, which is the document over which the lien has been asserted. As was put for the solicitors, had this point been raised below, then evidence could have been called which might have defeated the argument, including that the solicitors held documents in all of the (ten or so) matters on which they had been retained and that the lien applied to and was supported by all documents. Further, Mr Coshott could have been cross-examined about these documents and the scope of the retainers (including the existence of any special agreement as referred to in the authorities below).

36    In any event, and as was also submitted for the solicitors, the submission is inconsistent with authority. In Leeper v Primary Producers Bank of Australia Ltd (In Vol Liq) (1935) 53 CLR 250 at 256 - 257, this was said:

A solicitor’s general lien extends to documents which have come into his possession in his professional capacity even for a particular purpose, at any rate after that purpose has been served.

37    Further, in Moloney v Marler & Darvall (a firm) [2004] QCA 310 at [43], Mullins J identified the relevant principle as follows:

…the learned trial judge applied the proposition in respect of a solicitor’s retaining lien summarised in para 2.34 of Tyler et al Fisher and Lightwood’s Law of Mortgage (Aust ed, Butterworths, 1995):

The lien does not arise where documents or other property have been deposited with the solicitor for a special purpose, and accordingly he cannot detain them beyond that purpose: Lawson v Dickenson (1724) 8 Mod 306; 88 ER 218; Young v English (1843) 7 Beav 10; 49 ER 965; Gibson v May (1853) 4 De GM & G 512 ; 43 ER 607; Re Clark; Ex parte Newland (1876) 4 Ch D 515; Stumore v Campbell [1892] 1 QB 314. But to deprive a solicitor of his general lien, there must be a special agreement as to the purpose of the deposit.

38    Examples of special agreements or other circumstances inconsistent with a general lien were explored in Duke Finance Ltd (in liq) v Commonwealth Bank of Australia (1990) 22 NSWLR 236 at 245 – 246 in these terms:

To avoid circularity in the reasoning, it must be asked whether there was some particular purpose for which the securities came into the possession of the bank whereby there was some inhibition on the bank claiming possession in its own interests, going beyond the customer's ordinary entitlement to have his securities back if he asked for them, giving rise to an inconsistency with the implication of a lien. The cases can be explained as finding such particular purposes — the purpose of keeping the securities in safe custody and not otherwise dealing with them (Brandao v Barnett [(1846) 12 Cl & F 787; 8 ER 1622; (1846) 3 CB 519; 136 ER 207] and other safe custody cases); the purpose of holding the securities as security for a specific advance and not otherwise (London Chartered Bank of Australia v White (1879) 4 App Cas 413; Wilkinson v London and County Banking Co (1884) 1 TLR 63; Bruce v Good [1917] NZLR 515; Baker v Lloyds Bank, Ltd [1920] 2 KB 322; cf Re London and Globe Finance Corporation [1902] 2 Ch 416), the purpose of delivery to a stockbroker for sale (Symons v Mulkern [(1882) 46 LT 763]); or the purpose of holding as security under a building contract (MPS Constructions Pty Ltd (In Liquidation) v Rural Bank of New South Wales [(1980) 49 FLR 430]). In each case the circumstances must have been such as to lead to the conclusion that the bank’s possession was so confined to the particular purpose as to exclude the implication of a lien.

39    As the submissions for the solicitors put it, there is no evidence displacing the ordinary position that the lien over the certificate of title, which came into the solicitors’ hands as an ordinary incident of their retainer on the conveyance, is other than a general lien. But, as discussed, it must be accepted that the case would have been run differently had the point been put below, including by cross-examination of Mr Coshott, with the result that it cannot be raised in this appeal.

40    For these reasons, the appeal is without merit and should be dismissed, with costs.

Associate:

Dated:    12 December 2016

SCHEDULE OF PARTIES