Cao v Yu

[2016] NSWDC 296

District Court

New South Wales

Medium Neutral Citation:

Cao v Yu & Anor [2016] NSWDC 296

Hearing dates:

26 September 2016

Date of orders:

14 November 2016

Decision date:

14 November 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The notice of motion filed by the second defendant applicant on 26 August 2016, as amended, seeking dismissal or alternatively striking out of the proceedings, pursuant to UCPR r 13.4 and r 14.28, is dismissed;

 

2. The second defendant applicant is to pay the plaintiff respondent’s costs of the dismissed motion;

 

3. Liberty to apply on 7 days’ notice if further or other orders are required;

 4. The proceedings are listed before the List Judge for case management directions at 10.00am on Monday 28 November 2016.

Catchwords:

PRACTICE & PROCEDURE – applications for dismissal pursuant to UCPR r 13.4 and for strike out pursuant to UCPR r 14.28

Legislation Cited:

Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, r 13.4, r 14.28

Cases Cited:

Cao v Liu, 2012/275052, District Court, unreported, 6 September 2013
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Yu v Cao [2015] NSWCA 276

Category:

Procedural and other rulings

Parties:

Ping Cao (Plaintiff/Respondent)
Barrie Goldsmith t/as Goldsmith Lawyers (First defendant)
George Yu (Second defendant/Applicant)

Representation:

Counsel:
Mr KP Smark SC (Plaintiff/Respondent)
Mr R Rasmussen (Second defendant/Applicant)

  Solicitors:
Fitzpatrick Solicitors Pty Ltd (Plaintiff/Respondent)
Etheringtons (Second defendant/Applicant)

File Number(s):

2015/352100

Publication restriction:

None

Judgment

Notice of motion

1. The second defendant applicant, Mr George Yu, seeks to invoke UCPR r 13.4 and UCPR r 14.28 to have these proceedings brought by the respondent plaintiff, Mr Ping Cao, either dismissed or struck out.

Nature of the substantive case

2. The substantive proceedings in which the motion has been brought, involve claims of alleged professional negligence and breach of contract alleged against the plaintiff’s former solicitor, the first defendant, Mr Barrie Goldsmith t/as Goldsmiths Lawyers, and a co-extensive claim against the second defendant, Mr George Yu, pleading a cause of action in deceit.

Procedural background

3. The substantive proceedings arise from antecedent defamation proceedings brought by the plaintiff, Mr Ping Cao, who had instructed the first defendant, Mr Barrie Goldsmith to act as his solicitor. The defendant in those proceedings was Ms Shengrong Liu, also known as Mrs Yu, the wife of Mr George Yu, the second defendant in these proceedings.

4. On 8 September 2013, after a 12 day hearing before another Judge of this Court, those defamation proceedings resulted in the entry of a verdict and judgment for the defendant: Cao v Liu, 2012/275052, District Court, unreported, 6 September 2013.

5. On 14 September 2015, that first instance decision was reversed on appeal: Yu v Cao [2015] NSWCA 276. Consequent upon the dismissal of those proceedings on appeal, the plaintiff brings the present proceedings against his former solicitor, Mr Goldsmith and Mr Yu.

6. Mr Goldsmith did not participate in the hearing of the present notice of motion because the second defendant did not seek any interlocutory…