Anpor Holdings Pty Ltd v Swaab
[2008] NSWSC 208
•7 March 2008
NEW SOUTH WALES SUPREME COURT
CITATION:
Anpor Holdings Pty Ltd v Swaab [2008] NSWSC 208
JURISDICTION:
Equity Division - Commercial List
FILE NUMBER(S):
50237/07
HEARING DATE(S):
7 March 2008
JUDGMENT DATE:
7 March 2008
EX TEMPORE DATE:
7 March 2008
PARTIES:
Anpor Holdings Pty Ltd (Plaintiff)
Frederick Swaab and 3 others trading as Swaab Attorneys (Defendants)
JUDGMENT OF:
Bergin J
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
J Williams (Plaintiff)
DR Pritchard SC (Defendants
SOLICITORS:
Blake Dawson (Plaintiff)
Middletons (Defendants)
CATCHWORDS:
[EQUITY - COMMERCIAL LIST] - practice and procedure - application to transfer matter out of Commercial List to Common Law Division Professional Negligence List - rationale of specialist lists - professional negligence suit - underlying commercial transaction in respect of which no relief is sought
LEGISLATION CITED:
Civil Procedure Act 2005
Commercial Causes Act 1903
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
CASES CITED:
Challenge Bnk v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297
Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court of New South Wales, McLelland J, 3 March 1986, unreported)
Stanley-Hill v Kool [1982] 1 NSWLR 460
TEXTS CITED:
DECISION:
Matter transferred to Professional Negligence List in the Common Law Division
JUDGMENT:
- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
BERGIN J
7 MARCH 2008
050237/07ANPOR HOLDINGS PTY LIMITED v FREDERICK SWAAB T/AS SWAAB ATTORNEYS
JUDGMENT (EX TEMPORE)
This is an application brought by the defendants, Frederick Swaab and three others trading as the law firm, Swaab Attorneys. The plaintiff is a property developer that developed a large complex of apartments in Waitara in the northern part of Sydney, New South Wales (the Project) and retained the defendants to advise it in respect of the Project.
The plaintiff’s Commercial List Statement includes a claim that the defendants failed to give advice to the plaintiff in respect of certain aspects of the transactions relating to the Project. In particular, there is a claim that the defendants owed a duty to the plaintiff to advise it in respect of dates of registration of plans, options and the prospect of a particular purchaser rescinding the contract. There is also a claim that the defendants advised it inappropriately in circumstances where they knew certain facts that would adversely affect the plaintiff, in particular in relation to the extension of the date for the registration of the plan. As quite often occurs in these cases, there is also a claim for misleading or deceptive conduct against the defendants.
The defendants seek an order transferring the proceedings to the Professional Negligence List, a specialist list in the Common Law Division. The plaintiff resists the application on the basis that it was quite proper for it to commence the proceedings in this List because it arises out of a commercial transaction. In this regard the plaintiff relied upon the unreported decision of McLelland J in Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court of New South Wales, McLelland J, 3 March 1986, unreported) in which his Honour said (at 5):
The orderly conduct of the business of the Court requires that proceedings properly commenced in one Division remain in that Division unless a sufficient case for transfer has been made out.
The plaintiff submitted that the defendants must establish that it is "inappropriate" for the proceedings to remain in the Commercial List before the Court would exercise its discretion to transfer the proceedings to the Common Law Division Professional Negligence List. Cases in the Common Law Division that “include” a claim for “legal professional negligence” are entered in the Professional Negligence List: Practice Note SC CL 7 (PN CL 7) par 5. PN CL 7 contains a regime for the management and preparation of the cases in the List including the manner in which expert opinion is to be prepared: PN CL 7 Sch 1.
In support of the claim to transfer the proceedings the defendants relied upon a number of decisions that pre-date the structural changes in relation to the manner in which the work of the Court is administered. In 1998 the Commercial Division of this Court was abolished. There are now only two trial divisions; the Equity Division and the Common Law Division. The work of the Court is administered through specialist lists and those cases that do not fall into specialist lists are dealt with in the general lists of the trial Divisions. Trial judges are assigned to specialist lists and as they continue to hear cases in the list it is expected that their expertise in the particular fields of substantive law and procedure in respect of the matters in the list will increase, with the consequence that the lists operate efficiently and effectively with cost benefits to the parties.
In Challenge Bank v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297, Rogers CJ Comm D traced the history of the establishment of the list of commercial causes under the Commercial Causes Act 1903 to the establishment of the Commercial Division of the Court and the exercise of the Court's discretion to transfer cases in and out of the list and Division (301-306). His Honour referred to Stanley-Hill v Kool [1982] 1 NSWLR 460 in which Moffitt P (with whom Glass JA agreed) referred to the effect of the Supreme Court Act 1970 in repealing the Commercial Causes Act 1903. In that case the President said at 461-462:
However s 56 of the present Act and its like equivalent (Commercial Causes Act 1903, s 5) means that wide discretions particular to commercial cases are given to and ought to be exercised by the Commercial judge, as indeed they have over the years, so that the court comes with expedition, minimising expense, to the real matter in issue, setting aside, as far as reasonably proper, procedures and rules of evidence which stand in the way of so doing.
Rogers CJ Comm D said of this observation at 306:
This has in no wise been changed by the setting up of a Commercial Division. Furthermore, the Commercial Division can only fulfil its raison d'etre if it retains a discretion to transfer to the Common Law Division matters which do not call for its expertise or in which, due to the acts or omissions of the parties, it is impossible to give a speedy decision on the issues. It would be surprising, to say the least, if the effect of establishing a Commercial Division of the Court were to deprive it of the discretion needed to restrict the work of its judges to the cases really calling for the procedures the Division provides.
Since 1998 the Commercial List has been administered in the Equity Division. Commercial cases were originally heard in the Common Law Division until the separate Commercial Division was established in 1985. The establishment of the Commercial List in the Equity Division recognises that many commercial cases include claims for equitable relief with commercial parties taking advantage of the development of the law of estoppel and equitable compensation. The observations made by Rogers CJ Comm D in Challenge Bank remain apt notwithstanding the change in structure.
Mr J Williams, of counsel, who appears for the plaintiff, candidly conceded there is nothing in relation to the underlying commercial transaction of the Project that is the subject of any claim for relief. The only claims are for alleged negligence by the solicitors in advising (or failing to properly advise) the plaintiff in respect of the Project or for misleading or deceptive conduct by the solicitors arising out of the same facts, matters and circumstances.
The enactment of the Civil Procedure Act 2005 (the Act) and the Uniform Civil Procedure Rules 2005 (the Rules) together with Practice Note SC Eq 3 (governing the operation of the Commercial List) and PN CL 7 make it clear that the overriding purpose of the Act and Rules is to ensure the just, quick and cheap resolution of disputes before the Court. It would appear that the costs are not going to be adversely affected by the transfer to the Professional Negligence List; indeed, it would seem that the costs may be less when the matter is dealt with by a judge expert in that field. That is not to say that judges of this Court sitting in any List or sitting generally could not deal with this matter, but the present structure of administering the work of the Court through Lists is to facilitate cases being dealt with by judges who specialise in the particular field of law that is the subject of the List.
Mr Williams makes the point that unless I am satisfied that it is “inappropriate” for the proceedings to remain in this List then I should not transfer them. I am not satisfied that this test is applicable as a prerequisite for a judge's discretion to be exercised, but even if it were, I am satisfied that, for the reasons I have just given, it is inappropriate to leave it in this List when there is a specialist list available to deal with this matter.
Accordingly, I make the orders in paragraphs 1 and 2 of the Notice of Motion. I direct the Registry to provide this matter with a Common Law file number. I list the matter before the Common Law Registrar on 12 March 2008.
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LAST UPDATED:
12 March 2008
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