On 14 August 2013, the Full Bench of the High Court unanimously overturned the Victorian Court of Appeal’s finding of a Quistclose trust in favour of a barrister in respect of money paid by a client to a solicitor for all of the client’s legal costs, including the solicitor’s own fees.
The Respondent, a barrister, was briefed by a solicitor to appear for a client in criminal proceedings. The client made a series for payments to the solicitor on account of his anticipates future legal costs, including the solicitor's own fees and barristers' fees. However, the solicitor misappropriated most of this money, such that the amount remaining was insufficient to meet all of the Respondent's fees.
The Respondent sought compensation from the Fidelity Fund, which is maintained by the Legal Services Board ("the Board") under the Legal Profession Act 2004 ("the Act"). The Respondent argued that his claim should be allowed under Part 3.6 of the Act, on the basis that he had suffered a pecuniary loss as a result of the solicitor's default. The default was said to be the solicitor's failure to pay or deliver trust money to the Respondent.
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List G Barristers member Suresh Senathirajah appeared on behalf of the appellant, the Legal Services Board.