Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer - [2016] NSWSC 1252

Supreme Court

New South Wales

Medium Neutral Citation: Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer [2016] NSWSC 1252
Hearing dates: 31 August 2016
Date of orders: 09 September 2016
Decision date: 09 September 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Dismiss the defendant’s motion for an order pursuant to UCPR 12.7.
(2)    Order that the costs of the motion should be the plaintiff’s costs in the proceedings.
(3)    Note that the plaintiff’s evidence is complete.
(4)    Appoint 15 September 2016 at 9.30am before me for directions, including but not limited to a timetable for the filing and service of evidence upon which the defendant proposes to rely.
(5)    Grant liberty to the parties otherwise to approach the List Manager forthwith for the appointment of a hearing date.
(6)    Grant liberty to apply to me on 48 hours’ notice given to my Associate.

Catchwords: PROFESSIONAL NEGLIGENCE – solicitor’s negligence – delay by plaintiff – application to dismiss proceedings for want of due despatch – UCPR 12.7(1) – where proceedings commenced in 2012 – where plaintiff has taken limited steps to progress the litigation – competing prejudice – whether plaintiff’s case viable – whether limitation defences fatal to plaintiff’s claim – whether cause of action otherwise vulnerable – where no application for summary dismissal – where dictates of justice require early disposition – whether hearing on merits to be preferred
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Bi v Mourad [2010] NSWCA 17
Borgese v Papasidero [2006] NSWSC 407
Hoser v Hartcher [1999] NSWSC 527
Templar v Watt [2014] NSWSC 937
Category: Procedural and other rulings
Parties: Domenico Borgese (Plaintiff)
Cater & Blumer Pty Ltd (Defendant)
Representation:
Counsel:
C K Stewart (Plaintiff)
T M Faulkner SC (Defendant)
Solicitors:
Anthony Steven Margiotta (Plaintiff)
Curwoods Lawyers (Defendant)

File Number(s): 2012/138861
Publication restriction: Nil

Judgment

HIS HONOUR: These proceedings were originally commenced by statement of claim filed on 1 May 2012. The current version of the plaintiff’s pleading is the amended statement of claim filed on 25 March 2015. By notice of motion filed on 3 June 2016, the defendant seeks an order pursuant to UCPR 12.7(1) that the amended statement of claim be dismissed. That application is supported by affidavits sworn by Catherine Monica Osborne on 3 June 2016 and 30 August 2016. In response to the defendant’s application, the plaintiff relies upon the affidavit of his solicitor Anthony Steven Margiotta sworn 31 August 2016. It will be necessary shortly to refer to significant portions of all of that evidence.

Background facts

The plaintiff’s parents had owned agricultural land at Leeton in the New South Wales Riverina District. Mr Borgese senior died on 6 June 2003. He was predeceased by his wife who died on 21 February 1978. The plaintiff alleges that on 21 June 1976 he went with his parents and his eldest sister Benilda Papasidero to the office of Stuart Denis Maguire…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1252
Decision Date: 09 September 2016

CaseChat Overview and Summary

The case of Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer was an action for professional negligence brought against a firm of solicitors. The plaintiff, Borgese, alleged that the defendants had been negligent in the preparation of a will, resulting in a significant loss to Borgese. The matter was before the court on an application by the defendants to have the proceedings dismissed for want of due despatch. The court was required to consider whether the plaintiff's delay in progressing the litigation was such that the proceedings should be dismissed, and whether the defendants' limitation defences were fatal to the plaintiff's claim.

The legal issues before the court were whether the plaintiff's case was viable and whether the defendants' limitation defences would be fatal to the plaintiff's claim. The court had to weigh the prejudice to the defendants against the dictates of justice requiring an early disposition of the proceedings. The court also had to consider whether a hearing on the merits of the case would be preferred, given the nature of the claims and the delay by the plaintiff.

The court found that the plaintiff's delay in progressing the litigation was significant, but that the defendants' limitation defences were not necessarily fatal to the plaintiff's claim. The court held that the dictates of justice required an early disposition of the proceedings, and that a hearing on the merits of the case was preferable. The court dismissed the application to have the proceedings dismissed for want of due despatch, but ordered that the proceedings be stayed pending the outcome of certain interlocutory proceedings.

The court ordered that the proceedings be stayed pending the outcome of certain interlocutory proceedings, and that the parties were to file and exchange further evidence and submissions on the limitation defences. The court also ordered that the parties were to make further efforts to reach an agreement on the terms of a settlement, and that if no settlement was reached within a specified period, the matter would proceed to a final hearing.

Orders