Combe v Ziade - [2000] NSWSC 848

CITATION: Combe v Ziade [2000] NSWSC 848

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20091/00; 20092/00

HEARING DATE(S): 24 August 2000

JUDGMENT DATE: 29 August 2000

PARTIES :

Faye D Combe - Plaintiff/Respondent
Anthony Ziade - Defendant/ Applicant

JUDGMENT OF: Simpson J at 1

COUNSEL : Mr M J Cohen - Plaintiff/Respondent
Mr J Gleeson - Defendant/Applicant

SOLICITORS: Middletons Moore & Bevins - Defendant/Applicant

CATCHWORDS: Professional negligence - notices of motion pursuant to SCR Pt 13 R 5 that the proceedings be dismissed, in the alternative that they be permanently stayed - further alternative pursuant to SCR Pt 15 R 26 that the proceedings be struck out - duplication of proceedings - abuse of proceedings.

LEGISLATION CITED: Family Provision Act

CASES CITED: Henry v Henry (1996) 185 CLR 571 at 590
Moore v Inglis (1976) 50 ALJR 589 at 591-592
on appeal 51 ALJR 207
Andrew, Official Liquidator v Baradom Holdings Pty Limited (1995) 36 NSWLR 700
Combe v Ziade [2000] NSWSC 762, unreported

DECISION: In each case statement of claim struck out, plaintiff to pay the defendant's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List

SIMPSON J
29 August 2000
20091/00
20092/00

Faye D COMBE v Anthony ZIADE

Judgment

HER HONOUR :

1    By notices of motion filed in identical terms in each of these proceedings the defendant, Anthony Ziade trading as Anthony Ziade and Associates (solicitors) seeks an order pursuant to SCR Part 13 Rule 5 that the proceedings be dismissed, or alternatively an order that they be permanently stayed; and in the further alternative, an order pursuant to SCR Part 15 Rule 26 that the proceedings be struck out.
2    The essential basis for each application is the same; it is that the proceedings constitute an abuse of process because they duplicate proceedings commenced in other jurisdictions, and raise identical, or substantially similar, issues. A further basis for the claim in relation to the proceedings numbered 20091/00 is that they are the subject to issue estoppel.
3    It was common ground that, between about 1990 and 1993, the defendant (as I shall continue to refer to the applicant) acted in his professional capacity for the plaintiff in three sets of proceedings. These were: an application for probate following the death of her father; a related application pursuant to the Family Provision Act 1982, to which the plaintiff was, as executor of her father’s will, the nominated defendant, and proceedings in the Family Court of Australia related to the dissolution of the plaintiff’s marriage.
4    The statements of claim were filed by the plaintiff herself. In their form they disclose that the plaintiff was, at the time of filing, unrepresented, and from this it may be inferred that she prepared and drafted the statements of claim herself. This creates considerable difficulties in appreciating precisely the causes of action which the plaintiff seeks to plead, but it is quite apparent that the substance of her claim in each case is an allegation…

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.

Continue reading Combe v Ziade

Details

AGLC: Combe v Ziade [2000] NSWSC 848
Case: [2000] NSWSC 848
Decision Date: 29 August 2000

CaseChat Overview and Summary

The case of Combe v Ziade involved a claim for professional negligence against a barrister and solicitor. The dispute was brought before the Supreme Court of New South Wales. The plaintiff, Mr Combe, sought to hold the defendants, Mr Ziade and his firm, liable for professional negligence in relation to their handling of a property settlement. The defendants sought to have the proceedings dismissed, permanently stayed, or struck out on the grounds of duplication and abuse of process.

The primary legal issues before the court were whether the proceedings should be dismissed or stayed due to the existence of other ongoing proceedings and whether the application to strike out the proceedings should be granted on the basis of an abuse of process. The court had to consider whether the plaintiff's claims were duplicative of those in other proceedings and whether the initiation of the current proceedings constituted an abuse of the court's process.

In delivering the judgment, the court found that the proceedings were indeed duplicative of those already before the Federal Circuit Court and that the plaintiff had not demonstrated any sufficient grounds to justify the continuation of the current proceedings. The court also determined that the initiation of the current proceedings amounted to an abuse of process. Consequently, the court dismissed the proceedings, permanently stayed them, and struck them out in accordance with the defendants' applications. This decision effectively precluded the plaintiff from pursuing the same claims in the Supreme Court.

Orders