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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Fitzhardinge [1847] NSWSupC 34

practice, solicitor's lien

Supreme Court of New South Wales

Dickinson J., August 1847

Source: Sydney Morning Herald, 5 August 1847, in Supreme Court Collection, Vol. 2, p. 5


Mr. FISHER moved to make the rule absolute against Mr. Fitzhardinge, for the delivery up of sundry papers and documents belonging to Mr. Richard Rogers and Mr. Rutledge, and of which Mr. Fitzhardinge has possessed himself in the character of their solicitor; Mr. Rogers and Mr. Rutledge contending that his lien was satisfied.

MR. FITZHARDINGE appeared to show cause in person, and took several technical objections, which being all over-ruled, Mr. FITZHARDINGE addressed the Court on the merits. He said that upon their own affidavits no case was shown for making the rule absolute. That they ought to have shown that both parties ought to have concurred in the application; also that the documents in question ought to have been proved to have been delivered by them to him; they might not have been put into his hands by them; that there might be a cestui qui trust or a tenant for life. Nor do they show that he (Fitzhardinge) was an attorney of the Court, at the time these deeds came into his possession. Also, they do not offer to satisfy the lien, if any. They only say that they had paid and satisfied the claim of Mr. Piper Mackenzie, the assignee of the chose in action, taken by virtue of the writ of fi. fa. in Jones v. Fitzhardinge; they only swear that they are not indebted to him in any sum for which he (Fitzhardinge) could claim a lien. These papers were necessary to a suit in progress. He complained of the harshness of the application; his answer to the application was that a few m months back they denied his retainer, they then said that he (Fitzhardinge) was not their attorney; he cited Ex parte Maxwell, 4 Dowl. Prac. Ca., p.87.

Mr. Justice THERRY here drew the attention of Mr. Fitzhardinge to the note addressed to him by Messrs. Holden and M'Carthy, requiring him to furnish them with his claim of lien (if any).

Mr. FITZHARDINGE said that those gentlemen were strangers in the transaction, and was about to read an affidavit in reply, to which

Mr. FISHER objected, on the ground that the affidavit was not filed before the case was called on, under Chamber regulations of September, 1843.

The COURT reserved the point, and subject thereto

Mr. FITZHARDINGE proceeded to read the affidavit, which was in support of the points taken by him, and among other facts relied upon the circumstance of the papers having been placed in his hands by one Baylis, one of the cestui qui trusts. He contended, that the parties having disclaimed the employment of him (Fitzhardinge,) as their solicitor, could not now, for the purposes of this application, insist that he was their attorney. Another point was, that in this case the whole of the business done was in the Equitable Jurisdiction of the Court, and that the application ought, therefore, to have been made to that jurisdiction; this suit in Equity was still in being, and it was, he said, a very peculiar suit; as the cause must come on again for further directions. The third answer to the case is, that he (Fitzhard8inge) had a lien. The question of lien must be laid before a jury, and cited Re Millard, 1 Dowl. Prac. Ca. 140. His action was brought to recover the costs of that suit, up to the date of the report, and the affidavit went on to state that other proceedings were taken after the action was brought, and claimed a lien in respect of the costs of those subsequent proceedings; and it was stated that the suit was instituted for the benefit of the cestui qui trusts, for whom Messrs. Rogers and Rutledge were trustees. If he (Fitzhardinge) had a lien he was entitled to the benefit of that lien; if he had not a lien, that was a question which the Court, he contended, would not entertain in a summary application. On these grounds he submitted that the motion must be discharged with costs.

Mr. FISHER, in support of the rule, said that the doctrine went no further than this, that the Court would not entertain the application where the claim for a lien was made bona fide. He then contended that this claim for a lien was mala fide ; he then read the affidavits in support. It appeared that the suit was brought to foreclose Marsden's estate. Mr. Fitzhardinge had written to the trustees, inclosing his bill of costs, and claiming payment, in which he stated that there was something more to be done in the suit, but that he should not carry them on without payment. Messrs. Holden and M'Carthy had written to Mr. Fitzhardinge as the solicitors for Messrs. Rogers and Rutledge, in the most courteous terms, and in the second letter also, conceived in the same gentlemanlike terms, and requesting that if he had any lien on the papers he would state the nature and amount thereof, to which Mr. Fitzhardinge returned no other answer than that the papers must be retained by him until another solicitor was appointed. Fitzhardinge never gave any intimation that he had any such claim for a lien; he therefore contended that the claim could not be made bona fide. Fitzhardinge had no right to retain the papers for costs to be incurred in future. He does not pretend to show that he has taken any steps in the cause since the delivery of his bill. He does not show that he had made any briefs; it was, he said, clear that if any such briefs had been made, they must have been made for the purpose of defeating this application, and that the lien was in fact cooked up with that object; and he sets up this lien at the last moment. He says nothing about the lien, and that is proof that the claim is not bona fide. He says in his letter of 23 rd July that there were further expenses to be incurred, but which he declines to carry on and incur further disbursements. On the 3 rd of August the action was brought, and he cited as a parallel case Harrison v. Moody and Mal., and the recent case of Hunter v. O'Hara, upon which grounds he submitted that the Court would not suffer these parties to be turned round by the concoction of such a claim.

Mr. Justice DICKINSON said that he would reserve the point raised by Mr. Fitzhardinge, as to whether this was a Chamber case or a case in Court. Also the point of the filing of the affidavit taken by Mr. Fisher, and that he would, after consulting with his Honor the Chief Justice, frame such an order as would be proper.

Dickinson J., 6 August 1847

Source: Sydney Morning Herald, 7 August 1847, in Supreme Court Collection, Vol. 2, p. 5

Re Fitzhardinge

His Honor Mr. Justice Dickinson delivered the following judgment:

I have conferred with the Chief Justice and Mr. Justice Therry on this case.

1st. We are of opinion, that as I took this case in Chambers by special delegation of the Court, that Mr. Fitzhardinge was entitled to file his affidavit at the time of the agreement, and to make use of it in his support.

2nd. We are satisfied from the affidavits that the documents came into the hands of Mr. Fitzhardinge as the attorney of Rogers and Rutledge, and Mr. Fitzhardinge's affidavit distinctly states "that further costs are due to him in the said suit, beyond the amount recovered in the said action, which costs did not pass under the Sheriff's sale." We think, therefore, that Mr. Fitzhardinge had a lien on the papers at one time, and that there has been no such offer to pay his demands as would operate to divest his lien; for all that is stated in the letter of 26th June, 1847, is a request for information as to the nature and extent of the lien.

We think, therefore, that the rule must be discharged; but as Mr. Fitzhardinge, in answering the letter of 26th July, 1847, took no notice of the question of lien, so as to afford Messrs. Rogers and Routledge the opportunity of settling Mr. Mr. Fitzhardinge's demands, we discharge the rule without costs.

Published by the Division of Law, Macquarie University